Mathews J Nedumpara
1. Our Constitution provides that the President (i.e., the executive) shall appoint the judges of the Supreme Court in consultation with the Chief Justice of India and such other judges of the Supreme Court and HCs, and in the case of judges of the High Courts the CJI and the CJ and the Governor (i.e. the state executive) of the state concerned. In other words, the executive, accountable to the Parliament and thereby the people of this country, is vested with the power of appointment. The only obligation is to consult the Chief Justice of India et al.
2. However, in the year 1993, the Supreme Court by recourse to a mechanism, namely, PIL which is contrary to the first principles of jurisprudence, namely that the Courts province is not to legislate but to adjudicate disputes, rewrote the constitution and created a new appointing authority, namely, the Collegium of Senior Judges.
3. The justification offered was that the independence of judiciary is a ‘basic structure’ and that the core of it is in appointments (and not in the post appointment discharge of functions) and that the core is protected only if the judiciary has primacy in the appointment. The said judgment is popularly known as the Judges-2 case. The Collegium system of appointment and transfer of judges where the judges appoint themselves came to be further cemented in the year 1999 by the judgment in a presidential reference known as the Judges 3 case. I remember wondering even then how such a judgment could ever have been authored by a Court.
4. Soon after the case, Justice Krishna Iyer prophesied that it will lead to nepotism and favoritism, nay, oligarchy and the eventual destruction of the institution. He has been proved to be right.
5. The Collegium is the product of the so-called PIL. Judges liberally entertained PILs because it brought under their jurisdiction matters which are in the exclusive province of the executive and legislature and thereby made them a great power center. The unprecedented powers the judges started wielding made judges post extremely attractive a career option. Chief Justice, Chief Ministers and powerful lawyers made the best use of the collegium which functioned in the most opaque manner and got their offspring appointed as judges at an early age.
6. Before the Collegium came into existence in 1993, it was the executive which appointed the judges. It often went by the recommendations made by the Chief Justice. And therefore, the kith and kin of judges had a better change of appointment than others. This was, however, fast changing with more and more first-generation lawyers being appointed as judges. The welcome change was completely reversed by the coming into existence of the Collegium. Take the case of the past 5 CJIs to the next 5 CJIs, all except one on each side, are the kith and kin of judges and powerful politicians!
7. The case of CJs of the 25 HCs are no different. Out of the 25, 7 are the sons and son in laws of former Chief Justices and judges ;4 are sons of Advocate Generals and Advocates; 9 are the juniors of former judges of the SC, Attorney General, Union Minister et al. Of the lot, 5 alone are first generation lawyers presumably without any God father; and the remaining out of the 25 is a relative of the former Attorney General of India.
8. What is true of the judges is equally true about the lawyers designated by the Court as senior Counsel. It is an exclusive club of kinship and connections.
9. With the Court assuming to itself the powers even the Parliament does not claim, namely, demanding accountability to it in matters which are purely in the province of the executive and legislative policy, of late, even by the so-called ‘suo motu’ proceedings, the executive is in no position to assert itself. The elite class of lawyers in Delhi have profiteered a lot out of the PIL business and they use their clout in the media and otherwise to lend legitimacy to the manifestly illegitimate jurisprudence of PIL. The Parliament unanimously enacted the Constitution 99th Amendment Act and the NJAC Act. But the powerful lobby of elite class of lawyers could defeat the will of the people and bring back the Collegium which the Parliament had abolished. With the Parliament being divided on political lines, it is very unrealistic to expect it to assert its legitimate supremacy, its voices being the will of the people. Collegium is all likely to continue until and unless the public opinion demands it’s abolition. And that is not possible without the public being made aware of the menace which the Collegium undoubtedly is. The attached chart is a humble attempt to educate the public at large that the Collegium is nothing but a synonym for nepotism and favoritism and that unless it is abolished our judiciary is doomed.