Collegium System Necessary For An Independent Judiciary : Arvind Datar | Full Transcript Of Interview

Senior Advocate Arvind Datar: Undoubtedly so. I have had the opportunity of now practising for almost 43 years and I have been in the bar before the collegium system and after also, so I know what was the appointment process before and after. I think, over all, the collegium system combines the best of both the worlds- you have proper selection. Let's take the High Court judges appointment. The collegium in the High Court selects best candidates, keeping in mind diversity, gender, other things and then they select the best possible candidates for vacancies. It is a tough task to persuade some eminent lawyers to take up judgeship. After the hard work is done, they would recommend, then it goes to the Supreme Court, the Supreme Court reconsiders it. Comments from the Executive are sought at the High Court level and at the Supreme Court level.

Mr.Datar : If you see it very very carefully in granular detail, you will find that the collegium system actually gets the views of both the Executive and the judiciary. All it says is that once the name goes to the Executive, if any objections are there, they are to be sent to the collegium. After all the objections have been considered by the collegium, then the appointment should go through. That is the only point where the judges have the last word. But in terms of selection of the best possible candidate, taking the views of the Executive, the picture projected is that we are the only country where judges appoint judges, that it is a closed club. That is completely false. It's not the truth at all. There is huge room for Executive play. The Executive has objected and the name has not gone through in several cases.

Mr. Sebastian: One criticism is that it is not something which is mentioned in the Constitution and it is something which has been artificially invented by the Supreme Court through some interpretation. How do you see this criticism?.

Mr. Datar: I don't think the criticism is justified. The 'basic structure' has been 'artificially invented' but that has saved the Constitution more than once. The collegium system also- you may call it an 'invention'- but I think it has saved the judiciary in my opinion. If you can see the kind of Executive pressure, supersession of judges, transfer policy in the Emergency, famous letter of Shiv Shankar in 1981 (Union Law Minister Shiv Shankar's letter requesting the chief ministers to obtain the written consent of all the 50 additional High Court judges being transferred as permanent judges to any other High Court in India. The letter created a furore. Then Chief Justice of India Y.V. Chandrachud sent a protest letter to Shankar, asserting that the government could not make transfers without taking into confidence the chief justices of the high courts), there has always been an attempt to probe the judiciary in some way or the other. I don't think 'artificial invention' is correct. If you look at Article 124(2), it says the President shall appoint the judges in consultation with the chief justice of the Supreme Court and the High Court. So the last word is with the President, which is the Executive, and consultations with the Supreme Court and High Court. If you apply your mind, what is the meaning of 'consultation'? Who is the best possible person to recommend the best people from Kerala High Court, etc? It is that court itself. The local High Court and the Supreme Court suggest which are the good names and then they and formally appointed. There is no question of 'artificial'.

Ultimately, whichever system you have, if all of us are on the same page that we want to get the best possible talent to man the higher judiciary, keeping in mind the multicultural, multi-religious country like India, if our intention is to get the best possible candidate and merit is the main criteria, then whether you have collegium system or any other system, it will work. What has happened earlier is that if you want loyalty and other considerations to prevail over merit, then all the problem starts. Then you can always find fault with the collegium.

Mr.Datar : If your aim is to have an independent, robust judiciary, you will not fault the collegium system at all. Is there any empirical data to say that if you take a sample of hundred judges appointed before the collegium and hundred post collegium, the judges after are substandard? I don't think so at all. In the Madras High Court, 17 names went by Chief Justice Katju, they were stalled because the Executive wanted their own names. We moved a PIL, Mr. Venugopal appeared for us, ultimately the appointments came through. Collegium system has worked very well, they may always be aberration, but doesn't mean that you junk the whole system.

Mr. Sebastian: But do you think the collegium system has been unable to secure independence of judiciary because we have seen instances where certain names perceived to be unfavourable by the Executive are not recommended, they are overlooked? And we have also seen certain names haveing open political affiliations being recommended as well. Do you think the system has been able to secure the independence of judiciary?

Mr. Datar: Frankly, the independence of the judiciary can be secured by the Executive respecting the recommendations of the collegium. Ultimately, the last word is of the Executive, the President is to sign the warrant of appointment. If he does not sign the warrant of an excellent candidate, at whose altar is the independence sacrificed? The collegium altar or the Executive altar? Now, for example, you recommend the name of another person who should come to the Supreme Court, that is stalled for six months, for eight months, some names are approved after 48 months, then what is the message that you send? Then I think it is wrong to blame the collegium for independence. It has nothing to do with independence. It makes the best possible recommendations within its limitations. The collegium can only go so far. The independence can be secured if the Executive respect that these are excellent candidates, merit is important and I will appoint them.

Mr. Sebastian: Another major criticism against the collegium system is that it appoints people who belong to a particular group and most of the recommendations are of either relatives of judges or advocates- of nepotism. Or that there is not sufficient representation of backward classes, minorities, that it is not representative or inclusive. Do you think a system like NJAC, which would be a constitutional body which would be open to public scrutiny, would ensure a more accountable, representative and inclusive system for judges' appointment?.

Mr. Datar: You speak of nepotism, that children of judges get appointed. I have no quarrel with a son or daughter of judge being appointed if he is meritorious. Very often, a child gets into the law because the parents are lawyers. He has grown up in such a family, so traditionally, whether you are a lawyer, a doctor or architect, very often, the son follows the father's profession. That's very common. You see it most in politics. I mean, ironically, look who is accusing the judiciary of nepotism? The fact that he is the son or daughter is not important as long as he is good. I know cases where children of judges were not competent and have not got judgeship. Or you can always take the data, of a hundred appointments, 10-15 may be bad, whether there is NJAC or collegium, nobody can guarantee that only the best of the best will be appointed. It is not possible anywhere in the world.

As far as backward classes are concerned, I don't think your stand is correct, collegiums all over the country are making strenuous efforts to ensure that minority communities, backward classes are all adequately represented. In fact, sometimes, it is the other way round. If you're not in the reserved community, it is much much more difficult to get into the judiciary in some states. We should not forget this. To say that the backward classes are not represented is factually incorrect. All of this talk is without data. There is nothing to show that in a High Court, it is not (representative)...There cannot be proportional representation, if one backward community is 18% of the state, it cannot be aaid that 18 or 20% judges should be from that community. It should be reasonable representation within the parameters. In Madras, there are 17 judges, I think the representation is excellent, we have a very large contingent of women judges also. I know of Hyderabad, Madras, Bombay, Karnataka, representation is more than adequate.

Mr.Datar : When you talk of NJAC, the present NJAC is not workable because of statutory deficiencies. In fact, the collegium came in Justice Bhagwati's S. P. Gupta judgment where it was said that the chief Justice Doesn't have primacy and a collegium of judges should be formed. He meant consultation with the senior most judges. Even today the collegium gets recommendations- as regards the criminal bar, they will ask the judge sitting in the criminal portfolio who is the best possible person. As far as NJAC is concerned, they will act only on the recommendations of the High Court committee. NJAC Seven-member sitting in Delhi will not know who is the best possible candidate in Assam or Rajasthan. That High Court has to recommend names. Once the High Court recommends names and they give reasons- merit, representation of backward classes, gender, minority etc, then I don't see how NJAC will be better than the collegium. NJAC, see, without the judges in the majority again goes to...and I tell you again and again that you can have NJAC, you can have judicial commission, you can have everything but what is wrong with the collegium system? Just think dispassionately. Today, there are recommendations from the High Court- it has got multiple screenings, there is the local Executive level, the consulting judges from the High Court, the Supreme Court collegium, then it goes to the Executive. There are 3-4 tiers of screening.

Mr.Datar : What is most important is that today the collegium system can work very well, if you fix definite timeline. Today, there is adequate consultation, you have the IB report, Executive opinion is taken, enough inputs, but no timelines. Name goes from Supreme Court collegium, make it four weeks or eight weeks or whatever, but within eight weeks, where one is the best candidate and fit to be a judge, he should be appointed. Again arbitrariness, one gets appointed in three days, but another doesn't get appointed in four months. If you have a timeline, it alleviates insinuations. You can have NJAC but in the current form, it is unworkable. Instead of having a completely new system, the existing system can be made more workable. Has the Executive said that out of the 100 names, 30 or 40 names are so horrible that the collegium system will collapse? How much evidence is there to show that they were totally unfit? We can tweak the memorandum of procedure and finalise it.

Mr.Datar : If the Executive has the final say, you will have a judiciary like that of Russia and other countries, which will not command any respect, once the Executive gets to control everything. Because you require an independent judiciary. Independent judiciary is the most important thing that can happen to a constitutional government. You have a judiciary which is completely independent in a constitutional democracy. In England, there is Parliamentary supremacy and the judiciary struck down several important legislations, several processes were held to be bad. We have to decide where we want to go, if you want to become like Canada, UK etc, then independent judiciary is indispensable for that kind of constitutional democracy. Who does it help by having judges which are only to your liking? Just think for a moment? What kind of judiciary is that? What respect does it command? How do you attract the best talent from youngsters who want to appear before the court if they know the new appointments are Executive-dominated. You are causing long-term damage. The phase that we went through after 1973, why are you repeating it again?.

Mr. Sebastian: Recently, we have been seeing a lot of critical comments from the government against the collegium system and the Supreme Court judges appointment process and it has been happening repeatedly. Yesterday also, the law minister made some statements in the Parliament. How do you see this repeated criticism which sometimes borders on aggression?.