Is The Collegium System Hollowing Up The Strongest Pillar Of Democracy?
The Logical Indian Crew India
March 18th, 2019 / 4:06 PM
Image (Representational) Credit: Live Law
The strongest of forts can be destroyed and reduced to ruins through the termites which grow inside the walls; no external attacks needed, no canon balls to be shot, just the everyday routine of the enemy within will suffice. The exemplar could not be more apt. When the watchdog over the actions of the legislature and the executive is busy with the preservation of self and family, the casualty is of the judicial spine.
The compromise with the strength of the judicial system started around two decades ago with the birth of the ‘collegium system’. The collegium system owes its existence to three cases, collectively and commonly known as ‘the three judges cases’. This system of appointment and elevation of judges is surprisingly and yet not surprisingly mentioned anywhere in the constitution or in any of its amendments. It is basically nothing, but a judge-made law. And, India is the only country in the entire world where judges appoint judges!
This system has been viewed as controversial and has been criticised not only by people in India but also by legal scholars and jurists outside India. According to them, this system lacks transparency, accountability and credibility.
Judges appoint judges
The collegium system involves the chief justice and four other senior most judges who decide the names that are to be recommended for elevation. On what basis they decide these names and recommend them further for such a prestigious and sensitive post are still to be known. No reports of the background checks of the recommended people are verified by any of the known sources, neither are these reports made available in the public domain. Collegium system is basically a system devised to perpetuate family and good friends hold over the higher judiciary offices; the power of contempt is utilised to muffle any questioning in this regard. Furthermore, several of the recently appointed judges of various courts make us question whether merit was even a criterion or not. Such cloudiness and opaqueness in the judicial system can prove to be lethal for the democratic structure.
This practice of elevation has been challenged several times, not only by individuals but also by NGOs, one of them being NGO Suraz. Sadly, no changes were made.
After innumerable efforts, the Lok Sabha on August 13, 2014 and Rajya Sabha on August 14, 2014 passed the National Judicial Appointment Commission (NJAC) Bill, 2014, to scrap off the collegium system for the appointment of judges. A year later, by a majority of 4:1, Supreme Court struck down the NJAC on October 16, 2015, further declaring that the NJAC bill was interfering with the autonomy and smooth working of the judicial system. Although, after striking down the NJAC bill, the Supreme court did accept the fact that the collegium system lacked transparency and accountability and promised to make efforts to the improve the collegium system and make it more transparent and credible. It also promised to introduce proper norms and criteria for elevation. They were nothing but mere words, which haven’t been implemented till date to improve and rectify the system.
Courts are seen as one of the strongest and most influential institutions. General masses often look up to courts as the final and ultimate way out when faced by problems and injustice. It is essential to maintain the faith that the people of this country have in Indian Judiciary. The loopholes in the collegium system are not hidden in some casket. The current practice of appointing judges clearly promotes usage of familial ties, inappropriate approaches and disrespectful ways of getting to the ‘top’.
What is the first thought that crosses your mind when you hear the term ‘judge’? Perks? Amazing life? A car with a siren? Power? Position? But, what about your duty towards the nation and its citizens? What about serving justice to the people who were denied justice? Most people aspire to become a judge not because they desire to serve the people with their sense of justice, but because the glittery perks of this position seem to be too hard to resist.
There are rare professions allow a person to be as verbose as a judge. This is both a boon and a bane at the same time. The profession and the democratic system gives judges the authority and power to make, change and influence things. They often deal with cases that have several lives and livelihoods at stake. One wrong decision from their side can destroy numerous lives. Hence, this profession and position demands knowledge, sensitivity, sense of justice, patience and of course, common sense. Some of the bizarre judgements that were given by the judges of various courts make us question if they even possess one of the aforementioned qualities. One such instance occurred when a rape accused was jailed and was granted a non-bailable warrant for the offence when he did not turn up any of the hearing in the past six months, but after applying for a recall, the judge ‘punished’ him by asking him to plant five saplings and submit an affidavit in court to ascertain the compliance. This absurd decision by the court makes us wonder that if merit is not the criteria for being at this position, then what is?
Numerous judicial pronouncements have consistently held that all public offices must be filled up by a fair and transparent procedure only after wide publicity. But sadly and unfortunately, the appointments to higher judiciary fail to meet the aforesaid requirement. So evidently, what is preached is never practised.
It is essential to stop this damage before the structure completely collapses. It is essential to restore and maintain the faith of the masses in the judicial system. It is essential that the parents feel safe and proud when their teenager sees himself/herself going in the judicial profession. It is essential that people believe, even after 70 years down the line, that justice will be served to them when they come to the court irrespective of their caste, creed and colour. It is high time that the protectors of law recognise the evil that has been budding amongst them since decades and save the strongest pillar of democracy from degenerating. Crude oil, hence, should be used in time to save the fort from being destroyed by the termite within.
Written by : Sharvi Saxena (Freelancer)
Edited by : Poorbita Bagchi