SUGGESTIONS TO IMPROVE COLLEGIUM SYSTEM

SUGGESTIONS TO IMPROVE COLLEGIUM SYSTEM

At the outset, it is a welcome decision of Hon’ble Supreme Court to invite the representation and suggestions from the public who are desirous to make contribution for improving the working of Collegium System for appointment as Judges of High Courts and Supreme Court.  

The undersigned is practicing as an Advocate since 1996 in Nagpur District Court.  During the years 2001 to 2009, the undersigned had worked as a Civil Judge in Maharashtra Judiciary and after resignation resumed practice in Nagpur District Court.  While working as a Civil Judge, the undersigned was fortunate enough to closely see the working of eminent judges of Lower Judiciary as well as High Court.  But at the same time the undersigned experienced some anomalies in the judicial system and desirous to write down in the four categories as informed in the Public Notice as under :-

TRANSPARENCY

1.       The word transparency itself means qualitative.  Mere utterance of word transparency multiple times does not tantamount to transparency but it should be seen through the action.  While having transparency the basic anomalies are required to be removed at an earliest convenience.
2.       Equality before the law is a fundamental concept of our legal system.  All judicial officers take an oath to administer the law without fear, favour, affection or ill will.  But unfortunately it is not found so normally in the High Court. Now a days, the justice dispensation system has been converted in to justice distribution system.  The kiths and kins are practicing before them and how can a judge administer the law without favour and affection, or fear and ill will.  In such situation justice is only assured not secured.
3.     The first and foremost suggestion to remove the discrimination amongst the judicial officers of lower judiciary and the high court.  When a Civil Judge or District Judge is appointed, he is never posted in his native place or the place where he has practiced before his selection as a Civil Judge or District Judge.
4.        But the same rule is not followed for the Judges of High Court.  There lacks the transparency.  If the Civil Judge or District Judge is not posted at his native place or place of practice till he demits the office then same rule be applied for the Judges of High Court and Supreme Court.
5.         Normally an Advocate practices in High Court for years together naturally and obviously gets involved with many colleagues at his bar.  Some in nice manner and some adversely.  After appointment as a Judge of High Court, he himself cannot become integrated automatically.  The slightest amount of inclination is always there with the group of lawyers he has worked with, which is translated in the favorable orders while sitting as a Judge of High Court. 
6.    Merely becoming a Judge of High Court and Supreme Court does not tantamount that the person has a highly impeccable integrity automatically.  In order to remove the sophisticated moneyless corruption amongst the judiciary, applying the same rules to the Judge of High Court and Supreme Court as that of the Civil Judge or District Judge is a need of this hour.
7.       For that there needs increase of at least 3 more benches of Supreme Court so that the Judge of Supreme Court whose kiths and kins are practicing in Supreme Court can be migrated to these three benches.
8.       The benches of High Court in the state are required to be increased considering the population of the State.  In case of Judge of High Court, prior to their appointment, choice can be given to them to choose any High Court other than they have practiced, or the other bench of the parent high court if any, so that their practicing kiths and kins will not influence the justice dispensation system.

Summary of Suggestions as regards Transparency

A)   The rule which is applicable while appointing a Civil Judge or District Judge be applied mutatis mutandis while appointing a Judge of High Court or a Supreme Court.

B)     A Judge of High Court or a Supreme Court should not be appointed at his native place or the place where he has practiced.

C)   At the most a Judge can be asked to give three choices of any High Court or other bench of parent High Court other than they have practiced, so that they can be transferred on their choicest posting.

D)    There must be 3 more benches of Supreme Court.  It is the need of an hour to create more benches of Supreme Court as it is out of economic budget of the poor litigants residing at the farthest place to always reach singular Supreme Court at Delhi.

E)     The benches of High Court are required to be created considering the population of the State. 

F)     To accommodate the Judge of Supreme Court, whose kiths and kins are practicing in Supreme Court, such Judge needs to be transferred to the other benches of Supreme Court.

G)   A strict transfer policy at the time of appointment is required to be formulated so that no Judge can sit in the benches where their kiths and kins are practicing.

ELIGIBILITY

1.        The present rule of appointing a Judge of High Court amongst the advocates practicing before High Court only has destructed the legal fabric of judicial system.  The advocates practicing before High Court only deals with constitutional matters and writ jurisdiction and very few of them are aware about the Evidence Act and other allied laws.  It is also observed that most of them having absolutely no knowledge of the manner exhibiting documents and niceties of Evidence Act and other allied laws, which is prime concern of fact finding court.  Then such advocates after their appointment as a Judge of High Court failed to deliver justice in Appeal matters. Everywhere natural justice is not a deciding factor rather marshalling of facts and evidence is of paramount importance.  In appeal matters it requires real courage to understand the basic import of the procedural laws and substantive laws, which unfortunately does not see in some of the Advocates practicing only in High Court.  Therefore the appointments must be made amongst the advocates practicing in District Courts. 
2.     Similarly, while appointing a Judge of High Court and Supreme Court, the practicing lawyers from the District Judiciary ought to be considered.  While considering, their candidature to test their judicial acumen their interviews may be taken instead of calling for their reports from Senior District Judges and recommendations of senior advocates.  Otherwise, the candidates will be put to extra work of polishing the District Judges and Senior Advocates for their reports and recommendations.  
3. No push and pull theory needs to be adopted for appointment of a Judge of High Court and Supreme Court.  The Senior Advocates pushes their well wishers amongst their kiths and kins and the Judges representing the same groups prior to their appointments pulls them and places them with highest remarks before the collegiums.  This push and pull theory has ruined the life of meritorious advocates and aspirants only for the reason of not being the member of particular family or a group.
4. The appointments of Judge of High Court and Supreme Court certainly are not a matter of lineal descendants. But it requires the    highly impeccable integrity, judicial  acumen,  judicial  balance and focus.         All these characters do not depend   upon the relatedness and close acquaintance of a sitting judge or a former   judge.     All  these  characters  can  be  found  through  the  standard questionnaire  and    the    interviews   of   each  candidate.   The  practice   of recommendations  from  a  Sitting  Judge, Senior Advocates and Senior District Judges are required to be removed from the rule book.

Summary of Suggestions as regards Eligibility

A)   The candidate or aspirant for the post of Judge of High Court or Supreme Court be considered from the District Judiciary.

B) The practice of calling reports from Senior District Judges and recommendations from Senior Advocates are to be removed from rule book.

C)   Pull and push theory of recommending the advocates of particular family and group for the post of Judge of High Court and Supreme Court required to be scrapped.

D)    Appointments of Judge of High Court and Supreme Court from the pool of lineal descendants be strictly prohibited.

E)     All candidates for the post of Judge of High Court and Supreme Court must be asked to go through standard questionnaire and the interviews.

F)     No appointments are to be made on recommendations from Senior District Judges, Senior Advocates, Minister, Governor and any person with political affiliation.   

SECRETARIAT

1.     There must be a secretariat comprising of retired judges of Supreme Court, High Court and District Court at all the capital of the States with having main secretariat at the Centre.  This will be in aid to pick up the right candidate who can be in the zone of consideration.  They can be monitored through the local police stations in order to know their whereabouts, antecedents and personal character.
2.         This secretariat will be completely independent of executives, bureaucrats and be made accountable for the information and database of the aspirants for the post of Judge of High Court and Supreme Court.
3.          The secretariat will only collect the information and handover to the collegiums and will not have any power to pick up or discard any candidature as per their whims and wishes.

Summary of suggestions as regards SECRETARIAT

A)   Secretariat shall be strictly comprising of retired judges of Supreme Court, High Court and District Court at every state capital and the main at the Centre.

B) Secretariat shall be completely independent of executives and bureaucrats.

C)   Secretariat shall have no power to allow or discard the candidature of any aspirant.

COMPLAINTS

1.       No anonymous and frivolous complaint needs to be entertained.  Due to the groups amongst the advocates there are chances of complaints out of personal vendetta and requires to be rejected out rightly.  Only complaints with names and signature supported with material evidence should be considered.
2.      The complaints are required to be filed before the secretariat and upon the receipt of the complaint; work of concerned Judge or aspirant requires to be stopped till the preliminary investigations are completed.
3.           The complaints at the Secretariat level requires to be completed within 15 days and report be sent to the concerned Chief Justice of High Court who will take the decision within 30 days from the date of its receipt upon the report received and the opportunity to the concerned aspirant to explain.

Summary of suggestions as regards COMPLAINTS

• A       No anonymous and frivolous complaints be entertained.
• B)     The complaints with names and signatures supported with material        evidence should be considered.
• C)   Time frame of resolving the complaints needs to be fixed.

MISCELLANEOUS

1.           The transfer policy for the judges of High Court and Supreme Court be made     applicable to the existing sitting judges. 
2.          There  should  not  be  any  interference  of   political  families,   parties while      appointing the judges.
3.       Recommendation by anybody itself creates the way of hobnobbing which  leads to money or moneyless corruption or corruption in barter form i.e. giving relief or to give bashing to advocates representing particular groups or particular families.
4. The  retired   Judge  of High Court and Supreme Court be posted in Secretariat and  not  in  the  Tribunals and other constitutional machinery as it will increase the  influence  in  pre-retirement  judgments  for  the post-retirement posts and benefits.
5. Instead the Judges who could not make it to the post of a Judge of High Court and Supreme Court can be appointed in the Tribunal and Other constitutional machinery.

Summary of suggestions as regards MISCELLANEOUS

• A)  Transfer policy must be made applicable to existing sitting judges at an earliest convenience.
• B)     No interference of persons of political affiliation
• C)   Recommendations strictly prohibited.
• D)    No re-appointments of Judge of High Court and Supreme Court on Tribunals and Other Constitutional Machinery.
• E)     Appointments to Tribunals and Other Constitutional Machinery shall be strictly from the judges who could not make out to the post of a Judge of High Court or Supreme Court.

Recently the Supreme Court has declined the NJAC for the reasons mentioned in the judgment.  Therefore it is incumbent to strengthen the Collegium System and the same can be strengthened only on the rigid policies and strict implementation.  The reasons for declining the NJAC should not be allowed to enter in the Collegiums System by ways of recommendations, undue approaches by political parties, senior advocates and senior district judges.

      JAYANT ALONI