'Collegium System Is The Worst, But There's Nothing Better' : Justice Nariman Suggests Having Collegium With Retired Judges

Former Supreme Court Justice Rohinton F Nariman suggested that there should be a collegium of retired judges to appoint judges. Nariman proposed that these judges would, in turn, be selected by the practising High Courts and Supreme Court advocates.

“We do have our collegium system, which is the worst, but then there is nothing better. I would only suggest, and this is not for the near future, this is for the distant future, that you have the collegium of retired judges. Now, who will select those retired judges? The practising bar of the Supreme Court and High Courts. Because the Bar is our judges, judges have judges. And we are judged all the time by practising advocates. So, it is important to have practising bars all over the country who vote for the retired judges who are known for their independence and who would then sit with a secretariat and be consulted by everybody, including the CJI and law minister…and ultimately recommend persons for the higher judiciary.”

Nariman mused: “If this happens, then your present slew of judges, where you have outstanding judges in the HC and SC, then you have a lot of people who are only in transit, and some who are executive minded than the executive. The proportion within these three will drastically change.”

Nariman was delivering the Smt Bansari Sheth Endowment Lecture titled "The Constitution of India: Checks and Balances."

Notably, during his lecture, Nariman reflected on the Federalist No. 78 paper written by Alexander Hamilton. In this, Hamilton penned “It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power.” Speaking about the same, Nariman said:

“Federalist 78 is one of the most brilliant essays that you can read on a free and independent judiciary. He first says that without doubt it is the weakest branch of the government. Why? Because it does not have force or will. It has only judgment. Also, it does not command the puss, which the legislature has or hold the sword which the executive holds. So, it has to depend on the executive to see that its judgments are enforced. Our founding fathers tried to make the judiciary a little stronger than Hamilton saw. “

Against this backdrop, Nariman explained to his audience about the appointment of judges and how the system evolved through the judgments of the Supreme Court. It may be noted that earlier, the power to appoint judges to the higher judiciary was exclusively vested with the President. However, the position changed after the Second Judges Case (Supreme Court Advocates-on-Record Association vs Union of India). Through this case, the primacy in appointing judges to the higher judiciary came to be transferred from the executive to the Chief Justice of India. With respect to this, Nariman stated:

“The practise was, for a good 40 years that basically the president came out with a name i.e, the government of India. The chief justice said yes or no to it and then if the government felt strongly enough, it would still appoint the person. All this changes with the second judge's case. Nine judges ultimately held that independence of the judiciary is one of the pillars of our constitution and if you really want an independent judiciary, you have to have the CJI that initiates the name and really speaking consultation is not consultation at all. It is the concurrence. Therefore, the CJI becomes the imp pivot and now no longer the government.”

Elaborating, Nariman also spoke about the Third Judges Case wherein the Supreme Court, on the President's reference, expanded the Collegium to a five-member body. He said:

“So far, as the higher judiciary, the Supreme Court is concerned, you have a collegium of five judges who really do the appointing. We are often asked this question, how is the collegium system working. I was part of it. I would say like Churchill say famously that 'Democracy is the worst form of government except all other forms. So, that is how it is working. It is the worst form, expect all others. We certainly can't' revert to the earlier form.”