Collegium Is Performing An Administrative Function, So Its Decisions Can't Be Beyond Judicial Review : R Vaigai

On Saturday, while speaking on the issue of building a transparent and accountable collegium,  Ms. R. Vaigai, Senior Advocate at the Madras High Court, disagreed with the recent Supreme Court judgment in the Victoria Gowri case which held that collegium decisions are beyond judicial review.

Vagai, who was one of the petitioners who challenged the appointment of Justice Victoria Gowri, was speaking at a Seminar on Judicial Appointments and Reforms, organised by the Campaign for Judicial Accountability and Reforms (CJAR),

She said that selection of judges is an administrative function and power of judicial review is available over all administrative actions. Therefore, there is no logic in saying that collegium is not answerable to judicial review.

“....I question the decision of the Supreme Court that selection of judges is beyond judicial scrutiny, because the collegium is not a part of judicial function of courts. It is performing an administrative function. Is it not part of the administrative law that every administrative action is subject to judicial review?".

Referring to the judgment of the Supreme Court in Justice Gowri’s case, wherein the Judges had upheld her appointment stating that that suitability of a candidate cannot be the subject matter of judicial review, Ms. Vaigai stated that if a judge does not adhere to the constitutional values then the same is a question of eligibility and not that of suitability.

“My strong view is if a judge does not show strong adherence to the constitutional values it is a question of eligibility and not a question of suitability. Accountability should be at the forefront. Accountability to what? the institution you serve, not the post.”

Ms. Vaigai noted that the speeches of the executive, the Law Minister and the Vice President in particular are an attempt to weaken the judiciary.

“The utterances of the Vice President questioning the basic structure theory, and the various utterances of the Law Minister and the consistent actions of the Govt. in stalling appointment, transfers….These are all consecutive statements made with a common thread. And attempted to target the judiciary and weaken the judiciary. When the judiciary speaks independently it is inconvenient for today’s Govt…”

She said that though she had reservations about the collegium system of appointment of judges for not being democratic enough, at a time when it is under attack, she believes the best way is to strengthen it by making it transparent.

“I have had my reservations about the collegium being the sole selectee. There got to be more democratic input from the elected representatives...But today in the context of a direct assault on judiciary I do feel that we have to strengthen the collegium system. The only method by which we can strengthen the collegium system is by making it transparent, which is the best sunshine…”

Pointing at the executive’s persistent diatribe against the judiciary, Ms. Vaigai expressed disappointment that the Bar Associations are not opposing such attacks.

“Unfortunately, 70% of the judges’ vacancies are filled from the members of the Bar. Today, why do you think there is no opposition from the Bar Associations to the various speeches made by the Law Minister attacking the judiciary.”

The Bar Associations, she added, are also silent about the delay in making judicial appointments or refusing to appoint an individual on extraneous grounds.

“For instance, names were recommended from the Madras High Court, which came up and the collegium has said yes to it. But, in a recent set of appointments those two names were not found. It is commonly rumoured that one of them used to represent Waqf Boards and therefore he is not appointed. Why is the Bar not protesting this kind of non-appointment?”

She was concerned that if the Bar Associations are not independent then the future of judiciary is grim. The institution, she reckoned, would produce ‘yes men’ and individuals who would not be hesitant to be part of the majoritarian agenda’.

“This is a reflection on the State of the Bar which is the source of the judges. You are the feeder for future judges...Today the Bar has become ‘yesman' and being a part of the majoritarian agenda.”

Ms. Vaigai suggested that in order to strengthen the collegium it has to be made transparent and accountable.

“Strengthening has to happen from within the judiciary and also from the Bar.”

She pointed out that at present, the Chief Justice of the High Court takes the opinion of the Advocate General, Presidents of the Associations and some leaders of the Bar before making recommendations. She apprised all the participants at the seminar that the custom in the Madras High Court was that if an individual becomes the Secretary / Executive Secretary of the Madras Bar Association then their next post would be that of a judge of the Madras High Court. Such is the power that the Association yields in the appointment of judges at the High Court.

“In Madras High Court it is customary if you become Secretary/Executive Secretary of the Madras Bar Association, your next post will be judge of the Madras High Court....When this is going to be the platform for future selection then what kind of judges are we expecting....”

She further stated -

“Independence of the Bar, role of Bar members, their voices, their ethics and the strength of the judiciary in resisting the kind of onslaught that is happening is very important.”

On the issue of accountability, Ms. Vaigai referred to the controversial appointment of Justice Victoria Gowri. It was highlighted that the Chief Justice of India had disclosed in open court that certain material was not made available to the Supreme Court collegium when they made the recommendation.

“The accountability is both of the Govt agencies as it transpired in a recent challenge by us. The CJI of India said in the open court that this material was not open to us when we made the recommendation. Why was the material not available? It was available on YouTube. The Judges who sat on the Bench said we also look at social media. But that is not the job of collegium members. So, you depend on what the IB feeds, and this was not fed…”

She stated that it was the responsibility of the investigation agencies to disclose all the information available to it to the judiciary. She was skeptical that the investigation agencies were serving the executive and not the judiciary. Ms. Vaigai floated the idea that the collegium should consider getting its own intelligence wing to ensure that it can make an informed decision.

“The IBs also do not try to serve the judiciary, but they are serving the Govt. There has to be an independent machinery for verification. There has to be a dedicated Secretariat, dedicated staff and an Intelligence wing for the Collegium to function satisfactorily.”

During the course of her speech, Ms. Vaigai also opined that selection of judges by the collegium is an administrative action and can never be beyond the scope of judicial review.