The Supreme Court on Tuesday was flooded with diverse suggestions, some diametrically opposite, to improve the working of the collegium system for the appointment of judges to higher judiciary and making its transparent.
As one senior counsel after an other got up to make suggestions, the constitution bench of Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel put the onus on senior counsel Arvind Dattar and senior government law officer Pinki Anand to try to reconcile all the diverse and divergent views and put them on a chart to be considered on November 5.
However, the court set the limit saying that any suggested change to be considered by it would not breach the parameters set by the nine judges constitution bench in 1998 in third judges case.
While senior counsel Fali Nariman wanted the collegium in its improved version should be receptive to suggestions by the bar or whatever they wanted to put before it, senior counsel T.R. Andhyarujina wanted the people to know what weighed with the collegium in deciding in favour of a candidate to be appointed judge while others were cold-shouldered.
While Attorney General Mukul Rohatgi wanted the collegium to re-look at minimum eligibility age of 45 years for appointment as judge in the high court, Justice Khehar said this would result in a tenure at the apex court longer than the existing tenure of five to seven years.
Describing the work at the apex court as daunting, Justice Khehar said: “Stakes are bigger. Stress is bigger. It is like burning out. (Tenure of) seven to eight years is killing.”
As Solicitor General Ranjit Kumar said that the “transparency is the hallmark of the procedure to be followed by the collegium”, Justice Lokur wanted to know the “extent of transparency”.
“It should not jeopardise anybody’s name” being considered for appointment, Ranjit Kumar said leaving in uncertainty where the curtains will come on the transparency.
“Any case where there appears to be lobbying or testimonials” has to be rejected outright, held Nariman, while senior counsel Rajiv Dhawan favoured a permanent secretariat saying that it also involved transparency as it would be maintaining a record.
Addressing the poser whether consultative process should be broadened beyond the collegium, Dhawan, while favouring some cap, said: “This is a consultative process and not an exercise in democracy.”
Nariman voiced support for permanent secretariat that could be called as Judicial Appointment Secretariat. saying “collegium can’t do it (appointing judges) in spare time. It is a full time job. You can’t do it sitting at 4 p.m. and getting up at 4.30 p.m.”
Dhawan favoured relaxing the age limit in favour of “outstanding merit”.
He said that collegium will have to apply Mahmood test, named after a judge of subordinate judiciary who was so outstanding that after going through some of his judgments, the Privy Council decided to elevate him and make a judge of the high court.
Describing the entire process both “sacred and serious”, senior counsel and former solicitor general Gopal Subramanium said that the best candidate could only be decided after going through the judgments of the person under consideration for appointment.
Terming a “myth” all talk about the “experience and specialisation” in a particular stream of law, he said that if a judge wanted to learn then he could learn in no time as he referred to instances since 1950 to buttress his point saying that judges not trained in a particular stream of law pronounced profound judgments.
Lawyer R.P.Luthra urged the court that if it wanted to know the opinion of the people then it should put it in public domain as they are the real stakeholders in the justice delivery system.
A few senior lawyers and others in the court room were not enough to know the views of the pulse of the public, Luthra said, adding that lawyers had a vested interest.
The proceedings also saw a lawyer Methew J. Nadumpara – an outspoken critic of the collegium system – questioning the bench from not allowing him to address the issue. He went so far in his outburst that the court had to tell him that if he did not resumed his seat, then he would be asked to leave.