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Judge Rekha Sharma, a retired judge of the Delhi High Court, criticised the Supreme Court Collegium, stating that it is no better than the earlier system where the government appointed judges. She stated that the Collegium system continues to appoint judges on "whims".

Justice Sharma was speaking on 'Accountability of Judges of the Supreme Court & High Court of India' at an event organised by the Campaign for Judicial Accountability and Reforms(CJAR).

She stated that earlier, the appointment of judges was made by the government before it was replaced with the Supreme Court Collegium, as it was increasingly felt that appointments were made based on political ideologies, favours, and nepotism. But the remedy turned out to be worse.

"I will be very candid and not shy away from saying the Collegium system has all but failed. We may go back to history a little. The Collegium system came into existence by virtue of the two judgments of the Supreme Court in 1993 and another in 1998. Prior to that, the appointment to the Constitutional Courts was made by the government, and it was exceedingly felt that there was nepotism and favouritism, and the government was appointing its own persons with political ideologies similar to the government in power."

She added: "The power of appointment of judges was taken from the government, and the Supreme Court took it upon itself to find judges. But the remedy, let me be very candid, turned out to be worse than the disease. I have a number of instances...The fact of the matter is, nepotism and favouritism are far more pronounced; it is far more blatant, far more political and far more relative-centric."

She cited two recent instances of Collegium recommending Advocate L Victoria Gowri as the judge of the Madras High Court and the elevation of former CJI BR Gavai's nephew as judge of the Bombay High Court.

On Justice Gowri's case, Justice Sharma questioned whether the Collegium was obliged to clear her name after it belatedly came to light that she had some political affiliation with the Bharatiya Janata Party and had made comments targeting religious minorities.

She said: "We have a judge in Madras High Court. Before her appointment, she was reported to have political affiliation with the BJP Mahila Morcha. She was also accused of having made toxic remarks against Muslims and Christians. One can understand when a name is recommended from where she belongs but was the Collegium obliged to clear her name?"

Adding to this, she said: "Yet another name, the nephew of the then Chief Justice of India was appointed to the Bombay High Court. When there was murmur about it, we were told the then Chief Justice of India had recused himself from deliberation of the collegium. Was that good enough? The mere recusal itself was an indication to the other members of the Collegium that the name should be thrown. Forget that. Could that name not wait until the CJI has demitted office? We find collegium appointing and transferring judges at its whims."

She also called out the Collegium for not elevating Justice Akil Kureshi to the Supreme Court because the government is opposed to that. 

"You have heard of Justice Akil Kureshi's name. The Collegium remained deadlocked for 2 years because the government of the day didn't want him in the Supreme Court. One of the members of the Collegium, Justice Nariman put his foot down because Justice Akil Kureshi was at the highest in the seniority list. After Justice Nariman retired, within 7 days of his retirement, 9 names were recommended by the Collegium, dropping Justice Akil Kureshi's name."

She also spoke on judicial accountability for the conduct of the judge while referring to the controversial speeches of Justice Shekhar Yadav of the Allahabad High Court.

Justice Sharma remarked that it is the Collegium that let him scot-free despite the judge making controversial remarks against a community. 

"Recently, one judge of the Allahabad High Court made some kind of inflammatory remarks against Muslims in a seminar held by Vishwa Hindu Parishad and that too on the premises of Allahabad HC itself. He was called by the Collegium, and it is understood that he agreed to give a public apology for his remarks. But when he went to the Allahabad High Court, he not only redacted from his commitment but also wrote to the Chief Justice of the Allahabad High Court that he had not violated any principles of judicial propriety for making those remarks. Justice so and so, whoever he was, retired and he was scot-free for his toxic remarks."

In contrast to Justice Yadav's case, Justice Sharma pointed out that Justice Sreedharan was subjected to transfer after transfer just because he had directed for a suo motu registration of FIR against the Minister who called Colonel Sofia the sister of a terrorist.

"In contrast, you find Justice Sreedharan, who took suo motu action against a Minister of Madhya Pradesh for calling Colonel Sofia the sister of a terrorist and directed for registration of FIR be registered against him, the Collegium transferred him first to Chhattisgarh and on the asking of the government, transferred him to Allahabad High Court."

Justice Sharma asked whether the Collegium or the Government should be blamed for such instances. 

"Collegium system is working in the same way as the way the appointments have been made by the government. I find no difference in that," Justice Sharma.

Justice Sharma briefly spoke on other issues as well, such as the Courts repeatedly failing to uphold the principle of 'bail is the rule, jail an exception'. She stated that judges after judges are failing to uphold this principle 

"'Bail, not jail, is the rule' [but] judges after judges are making these words eat dust. Ask those languishing in jail for the last six years. When we talk of the roster system, whether Supreme Court or High Court, is to have a designated Court to decide criminal cases. The bail and habeas corpus matter, all other can wait."

Justice Sharma concluded by remarking that it is disappointing that despite the names of crores being deleted from the electoral rolls, the Supreme Court has failed to pass any "meaningful order".

"Names of 13 crore people have been removed from electoral rolls. The matter has been pending in the Supreme Court for many months and not one meaningful order has been passed. What has happened as a result? Young students and activists, civil society people have taken to the streets and having a peaceful march. What has happened to them? They have been beaten up, pushed into police vans and it is happening right under the nose of the Supreme Court which under the Constitution has been entrusted the power to safeguard such rights of ordinary citizens."

Also from the event - Supreme Court Needs Proper Roster Ruling Out Manual Intervention Of CJI: Justice Oka

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