Collegium Should Have Permanent Secretariat, Candidates Bank : Ex-SC Judge Indira Banerjee Suggests Reforms

Justice Banerjee was speaking on Saturday at a seminar on ‘Judicial Appointments and Reforms’ organised by Campaign for Judicial Accountability and Reforms on the topic of ‘Principles and Framework for Judicial Appointments’. Also on the panel were former Patna High Court judge, Anjana Prakash, Senior Advocate Sriram Panchu, transparency activist and founder of the Delhi-based Satark Nagarik Sanghatan, and Advocate Prashant Bhushan.

Even as former chief justice of the Supreme Court U.U. Lalit extolled the virtues of the collegium system in the first session, calling it a ‘near perfect model’, Justice Banerjee, did not mince words when pointing out the flaws of the extant mechanism for the selection or elevation of judges to the high courts and the Supreme Court. She was among the five senior-most puisne judges and as such, a member of the collegium for less than a month in her time. “I am always very frank, whether it is about the judiciary, about the lawyers or anybody else,” Justice Banerjee admitted in the course of her address. We take a look at the ten things Justice Banerjee said about the collegium system.

• Bound by the collegium system which has been judicially established

“Whether you agree that there should be a collegium, or disagree, the fact remains that it has been judicially established. So, we are bound by it,” Justice Banerjee said. “Similarly, you may agree with the NJAC judgement,” she added, referring to the top court soundly rejecting the proposed National Judicial Appointments Commission in 2015, “Or you may disagree, but the fact remains that there is a judicial pronouncement of the highest court of the land which is binding on all.”

Having said this, she then asked, “So what do we do within the system?”

• Need for an impartial judiciary to be balanced with the right to equality of candidates

Justice Banerjee said that the need for an impartial, independent, and strong judiciary must be balanced with the right to equality of aspiring judges. “This is because any appointment to the higher judiciary involves expenditure on the public exchequer in the form of the salary, perquisites and various other privileges that the judges of these constitutional courts enjoy. And these privileges are enjoyed not only during their service. There are many benefits which continue even after retirement,” Justice Banerjee explained. The former judge said in this connection that the collegium ought to reveal the procedure for selection, and the discussion that has taken place. If a candidate has not been considered and wants to know why the reason for rejecting their candidature must also be communicated to them.

• Minimum criteria laid down in Constitution have to be streamlined

The minimum criteria for appointment laid down in the Constitution must be ‘streamlined’, Justice Banerjee recommended. She illustrated, “Take for example the criteria that a judge, for elevation to the Supreme Court must have been a judge of a high court for at least five years. That makes almost every judge of the high court, except perhaps a few service judges who retire within two to three years of their appointment, eligible.” What are the criteria to determine, for instance, that a jurist is ‘distinguished’ and therefore, eligible for appointment, must also be laid down ‘in black and white’, she supplied.

“I always say that in every case exception may be permissible. But when exceptions are made, there should be good reasons given,” she added.

• Age, experience, income and other factors for selection as high court judges

“Experience should be important, but there should be no rigid divide on the basis of age alone,” Justice Banerjee said while talking about the factors that should be considered for appointment of judges to high courts. “I always believe in the principle of catching them young,” she said, laughing. “Appoint young judges who are competent and doing well before they start earning so much that the salary and perquisites enjoyed by a judge start to feel inadequate.”

The second factor which is taken into consideration for appointment as a judge of a high court is income, for which there can be no uniform criteria across the country. “Comparing a person earning any Himachal Pradesh or Uttarakhand, and a person earning in Bombay or Calcutta, for instance, would be like comparing oranges and apples.”

Other important factors to consider when appointing high court judges, according to Justice Banerjee, were academic background, legal practice, appearances in court, reported and unreported decisions, drafting skills, and proficiency in the language of the court. “By proficiency over language, I do not mean that the judge has to write literature the way some of our judges in the past have written their judgments. I speak of correct, intelligible language that will be understood by all,” Justice Banerjee explained.

• Permanent secretariat and candidates bank for judicial appointments

“I fully endorse the suggestion to have a permanent secretariat or a separate department,” Justice Banerjee maintained, “There must also be a candidates bank, or a permanent register containing names of prospective candidates.” The names of advocates in the bank would have to be recommended by judges of any constitutional court, senior advocates, or bar associations. “However, one should ensure that the recommendations of bar associations are genuine and not a ploy to appease the bar with a view to secure votes in elections. We have to guard against this aspect.”

“There may be other people who are competent to recommend names for inclusion in the bank,” the judge also conceded, “Dr Mohan Gopal, who has headed the National Judicial Academy for a number of years, for instance, maybe in a position to suggest names.”

• Selection of judges in advance and uniformity and consistency in selection

The date of retirement of every judge is known from the very start, so there is no reason why the process of consideration or consultation should commence after the judge has retired, or right when he is retiring. This can be done well in advance for a proper selection,” insisted Justice Banerjee

She also referred to another common occurrence of a candidate being ‘forgotten’ after they lost out in a round of selections. She explained, “It is quite possible that at a given point in time, you may have five names. And the collegium thinks that they are all capable but recommends the name of only four candidates to fill the four vacancies. But with the change in policy or change in chief justice, the fifth candidate is forgotten altogether. This should not be done. There needs to be uniformity and consistency.”

• Collegium should not consider hearsay, clarification to be sought from candidates

The collegium should refrain from hearsay, Justice Banerjee categorically asserted. “If there are whispers or murmurs, it would be a good idea for the collegium to invite the judge or the prospective judge for a cup of tea. Only after getting clarification from the candidate, and on making a further enquiry, should the collegium make a final decision.”

• Recommendations of collegium can be reconsidered on genuine grounds

There is no reason why the recommendations of a collegium cannot be reconsidered, if, on the basis of material on record, it has doubts regarding the correctness of the decision, said Justice Banerjee. However, she supplied an important caveat. “I do not see any reason why a recommendation cannot be reconsidered by the collegium, provided that the grounds for such reconsideration are honest and genuine,” she said.

• Gender imbalance on the bench possibly due to the policy of regional representation

There must be a uniform policy with respect to regional representation. But, there should also be exceptions to the principle of regional representation, Justice Banerjee insisted. She pointed out that since her retirement, there have been only three women judges on the Supreme Court bench. “So many names were recommended, but no women in those recommendations. Why? Possibly because of this regional representation policy,” she explained. “I see no reason why a second woman cannot be taken from the same high court if that woman is otherwise competent.”

• Judges must remember their oath even when discharging administrative duties

“Justice Ruma Pal, who had been a member of the collegium for a while, had shortly after her retirement, written an article where she had said that what goes on in the collegium is often ‘you scratch my back and I will scratch yours’,” Justice Banerjee recalled. This is most unfortunate, the judge exclaimed. She said:

“We have to remember the oath of office that we, as judges, take. As per the Third Schedule, we take a vow of allegiance to the Constitution of India. We promise to uphold the sovereignty and integrity of India and to discharge our duties of the office to the best of our ability, knowledge, and judgment, without fear, favour, affection, or ill will. This does not say judicial functions only. It says to discharge the duties of the office. So, when a judge discharges duties, whether judicial duties or administrative duties, this oath has to be kept in mind. It has to be without fear or favour.”