OPINIONS OF ODISHA CIVIL SOCIETY ON
EFFECTIVE COLLEGIUM SYSTEM & JUDICIAL REFORMS IN INDIA
India has suffered a series of misrules over the past under autocratic rulers; and the colonial rule being more rude in nature, number of persons from the civil society and mainly, the lawyers community rose up against the colonization spearheading the independence struggle. And ours is a Parliamentary form of Government where the house of people remains the supreme in policy making but scrapping the NJAC Act by judicial pronouncement on 16 October 2015, has become intolerable for a democratic society we are living in. The Government takes a decision to protect the sovereignty of the country from the demonic attack of the neighbouring countries where the courts have hardly any role to save the country and the politicians whom the apex court discarded to repose confidence in the matter of appointment of judges are more useful to save the country if foreign aggression is ever apprehended. One can’t be the judge of his own cause and thus the judges deciding their own cause is being viewed as a bad sign for the democracy of the country. Hence upon persuasion from the persons of different walks of life, Odisha Nagarika Samaj (ONAS), being one such civil society alliance in Odisha, organized a seminar on “The need for Judicial Reforms in India” on November 1, 2015.
Representatives from many civil society organizations, eminent social workers, activists, former ministers, politicians, academicians, former bureaucrats, former judges and members of various bar associations, lawyers of the High Court and other sub-ordinate courts participated actively in the deliberations.
It was decided that the collective opinion which emerged at the end of the deliberations to be submitted to the Hon’ble President of India, Hon’ble Supreme Court of India and the Attorney General of India being the voice of Odisha civil society to the issue of ‘Judicial Reforms vis-à-vis effective collegium’. All the participants being courageous wanted to lay their hands in the formation of effective judicial system in the country and thereby showed their great concern and surprise over the recent stand-off between the judiciary and the legislature.
The Constitution of India has devised its mandate under Articles 217 which runs as:
217. Appointment and conditions of the office of a Judge of a High Court:
(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years Provided that
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause ( 4 ) of Article 124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India
(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession; Explanation For the purposes of this clause
(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an Advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;
(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;
(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be
(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.
The Constitution has itself provided as to how the appointment of judges in higher judiciaries be taken care of and more so at that time the founders of the constitution were all alive and at no point of time any such allegation was ever floated but the Apex Court being the judge of one’s own cause has devised a Collegium system by centralizing the appointment of judges in themselves alone and the Government which was responsible to maintain the system was kept at bay and over the period the outcome of Collegium had rather introduced a kind of suspicion in the mind of general public with regard to appointment of a judge and till the appointment under warrant was issued , we were all in dark and as a result over the period acute favouritism,nepotism and element of arbitrariness had been the burning issue in the appointment of judges in higher judiciary and when there had been serious allegations of corruption and abuse of authority by the judges had made resentment among the people, the formation of NJAC was thought of as a step to bring transparency in the appointment of judges.
However, the way our system is functioning in the name of democracy, we are apprehensive that our suggestions, as invited, have hardly any values to influence the process but still we being one such civil society alliance in the state make the following suggestions to bring transparency in the appointment stated supra.
The striking down of the 99th constitutional amendment while scrapping the NJAC Act which followed from it, evoked sharp resentment from among the participants who viewed it as ‘absolutism’ of the judiciary without accountability. ‘Separation of powers’, enshrined in the constitution ensuring checks and balances between each branch had become unfairly tilted towards the judiciary where the judges appointment themselves through a system which was opaque and without transparency.
The views of Hon’ble Supreme Court in the judgment of October16, that, the civil societies in India are immature was entirely without basis, because it was the civil society movement which overthrew the authoritarian rule during emergency to restore the democratic rule in the country. Hence alibis like ‘partisan politics of political executives and immature civil society’ should not be grounds for striking down a constitutional amendment purely on the basis of apprehensions. Therefore, the NJAC system should be allowed with some modifications like withdrawal of ‘veto power’ and other such provisions as may be suggested by the Hon’ble Supreme Court.
Apart from dwelling at length on appointments of judges the deliberations also focused on several other issues plaguing the judiciary of late. However, the following humble suggestions were made by the civil society members and organizations seeking the attention of the concerned authorities:
- Since the collegium system of appointment of judges has come under suspicion on the charges of unfair practices and nepotism etc., the selection process should be transparent and above-board.
- All the records in connection with selection of judges to higher judiciary should be accessible to public and the process should come under RTI Act.
- If someone is recommended for appointment as a judge despite poor/ unsatisfactory records, reason may be cited in writing for selection.
- If President / Governor objects to any name and the collegium still consider him/her eligible, a speaking order of justification by the collegium must be recorded and placed in the public domain.
- A full time secretariat should be in place to deal exclusively with the appointment of judges.
- This secretariat should invite nominations from the Bar Councils, Bar Associations, civil society groups, eminent jurists and retired civil servants. It can also invite applications from interested persons additionally.
- The secretariat will prepare short list of candidates with bio-data and display it in the public domain.
- Selection of candidates for appointment as judges from the bars to the constitutional courts should be based on merit with a minimum of 10 years uninterrupted practice in a High Court.
- Selection from the bar and bench be made either or both through a written examination and the review of performance. In future All India Judicial Service may be considered for appointment to the higher judiciary.
- A robust performance appraisal system should be in place for promotion of High Court judges to the Apex court along with the seniority.
- The secular credentials of a person to be ensured while selecting as a judge.
- Complaints if any, after the short list is published to be taken into consideration only if supported by credible evidence within stipulated time.
- Frivolous complaints not to be entertained.
- If evidence of malfeasance received after appointment, the same to be investigated and disposed off in a time bound manner.
- The number of court holidays to be rationalized to clear the backlogs.
- All judgments of the High Court and Supreme Court to be uploaded to the respective court’s websites.
- The registration of cases to be serialized and heard in chronological order.
- Transaction in the lower courts should be in vernacular language.
- The High Court judges should be transferred regularly within the country preferably once in every three years.
- After retirement or relinquishment of office, the judges should not engage in any party politics.
- Impeachment system of sacking of judges should be abolished. They should be treated as any other public servant.
- After completion of hearing the judgment should be delivered within a stipulated time. It should not be withheld indefinitely.
- The code of conduct for the judges should strictly be adhered to.
Odisha Nagarika Samaj (ONAS)
HIG 29-B, Prajnabihar BDA Duplex, Baramunda, Bhubaneswar, Odisha, Pin-751003