Amid the tussle between the judiciary and the government over appointment of judges, Chief Justice of India D Y Chandrachud on Saturday said not every system is perfect but the current Collegium system is the “best” mechanism developed by the judiciary to maintain its independence.
Justice Chandrachud put up a stout defence of the Collegium system of judges appointing judges to higher courts while speaking at the India Today Conclave, 2023, just hours after Law Minister Kiren Rijiju at the same forum again criticised the selection process, asserting that as per Constitution the appointment of judges is the duty of the government. Rijiju also said the appointment of judges was not a judicial work but “purely administrative in nature”.
Justice Chandrachud’s predecessor Justice UU Lalit also supported the Collegium process, saying it was the “ideal system” while another former CJI S A Bobde favoured primacy of judiciary but was of the view that the government’s opinion was vital. The two former CJIs were also speaking at the same event.
“As the Chief Justice, I have to take the system as it is given to us… I am not saying every system is perfect but this is the best system we have developed. The object of this system was to maintain independence which is a cardinal value.We have to insulate the judiciary from outside influences if the judiciary has to be independent. That is the underlying feature of Collegium,” Justice Chandrachud said.
Raising questions on the Collegium system, Rijiju said it is a result of the “misadventure” of the Congress party.
On the issue of the appointment of judges, Rijiju said there is no role of the judiciary as such to initiate and to give finalisation to the appointment of judges.
“It was only later due to the misadventure of the Congress party, the Supreme Court started acting, which some people describe as judicial overreach. Then the collegium system came into existence”.
But right now, the position of the government is very clear that the collegium system is in place, he said.
“As long as a new system is not introduced, we will follow the collegium system but the appointment of judges cannot be done by a judicial order. It is purely administrative.” Rijiju said it is the bounden duty of the government to carry out due diligence on the names recommended by the collegium. “Otherwise I’ll be sitting there as a post master. Secondly, as per Constitution, appointment of judges is the duty of the government,” he observed.
Responding to questions on the government’s relations with the judiciary, Rijiju said it will not be proper to use the word “confrontation” in describing their relationship.
“In a democratic setup there are differences of opinions and positions. “Between different organs — the executive, the judiciary and the legislature — there will be issues which run against each other’s ideas. But to say that there is a confrontation is not correct,” he said.
On the issue of the Supreme Court Collegium making public intelligence reports with regard to some candidates recommended for high court judgeship, Rijiju wondered what is the sanctity of carrying out such a great effort in secrecy in the interest of the nation if reports of R&AW or IB are put in the public domain.
“I am mindful of my responsibility. I’ll never ever put in public domain information which will not serve the purpose for which we are sitting there,” he said.
The CJI also responded to Rijiju voicing displeasure over the Collegium revealing the government’s reasons for not approving the names recommended by it for appointment as judges of constitutional courts.
“He has a perception. I have a perception and there is bound to be a difference of perceptions. And what’s wrong in having a difference of perceptions. We have to deal with perceptions even within the judiciary. I dare say there is a difference of perception within the government. But we all deal with it with a sense of robust statesmanship.
“I do not want to join issues with the law minister for his perception. I respect his perception and I am sure he has respect for ours as well. The reason why we put this on the SC website is the desire of the present Collegium to meet the criticism that we lack transparency and a genuine belief that opening of the processes will foster greater confidence in the citizens,” Justice Chandrachud said.
Justice Lalit emphasised that the collegium system enables selection of judges by a body which is reviewing performances at the “grass-roots” and the process of recommendation by the apex court body is through a consultative route.
While recommending a judge, not only is performance but the opinion of other judges as well as IB report is also considered in the process and a new regime of appointment can only be “put in place in a manner known to law”, he said.
“According to me, collegium system is the ideal system… You have persons whose entire profile is seen by the high court. Not by 1-2 persons but by repeatedly as an institution. Similarly, advocates who practice before high courts; the judges who form the body, they see their performances every day. So who are supposed to be better positioned to see merit of the talent? Somebody sitting as an executive here or somebody who is seeing the grass root level performance, say in Kochi or Manipur or Andhra or Ahmedabad?” he said.
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