Collegium System Better Than Govt Appointing Judges; But It Is Non-Transparent, Non-Objective & Riddled With Nepotism : Prashant Bhushan
As the controversy over the collegium system refuses to die down, Advocate Prashant Bhushan added to the debate on Wednesday by saying that the existing judicial appointment mechanism, although better than allowing the government to have a direct vote, was still afflicted with a lack of transparency. Highlighting the failure of the superior courts to lay down any objective criteria for elevation and the way in which the seats of power in the judiciary are often handed down through generations, Bhushan said, “Although the collegium produces relatively more independent judges than when the government appoints judges or even gets a direct say, the whole business should be delegated to a full-time commission completely independent of the government, instead of this being discharged by an ex officio body of judges and the law minister. It is a full-time job!” The body would go about its job methodically by laying down objective criteria and with transparency, the public interest lawyer added.
Bhushan was invited as a guest at a parliamentary briefing on the topic ‘Taking stock of constitutional rights protection in India’ ahead of the Indian Republic Day celebrated on January 26. This virtual event was organised by The London Story, a think-tank run by the Indian diaspora in the European Union. Also in attendance were Finnish Green League politician and member of the European Parliament, Alviina Alametsä, Senior Advocate Anand Grover, and Advocate Shahrukh Alam.
Govt unduly influencing judicial appointments by sitting on recommendations
On the government’s role in judicial appointments, Bhushan unequivocally supported the top court soundly rejecting the proposed National Judicial Appointments Commission. He said, “It was rightfully struck down on the ground that the proposal eroded judicial independence, which is a part of the basic structure of the Constitution. The government, being a party to all the major cases that come to the courts, should not have a say in judicial appointments.” He also pointed out that the government has been surreptitiously attempting to influence the selection of judges by “sitting on recommendations by the collegium and not appointing those, whose names have been unanimously reiterated by the Supreme Court”. This, Bhushan claimed, was a brazen defiance of the law and an attempt to ‘bargain’ with the collegium and get candidates of their choice appointed.
Bhushan also alleged that the government attempted to unearth incriminating details or ‘vulnerabilities’ in the appointed judges of the superior courts, particularly the chief justices, in order to “get some kind of influence”. “They exploit that vulnerability to subvert the independence of the chief justice and subsequently, the independence of a large part of the judiciary because of the important role played by the chief justice in the allocation of cases and other administrative functions.”
“The government has not taken any steps either to strengthen the lawyer community, or to strengthen the judiciary,” exclaimed Bhushan, “So far as the government is concerned, especially this government, it would be very happy to allow the judicial system to just wither away and of course lawyers with them.”
Supreme Court failed to live up to expectations and protect rights and institutions
“The situation today is worse than it was during the Emergency of 1975 when fundamental rights had been suspended and pressed,” Bhushan grimly announced, “What we are seeing today is a systematic assault on all fundamental rights, on our democracy itself, on most of the institutions which have been created to protect our democracy, particularly on the judiciary, the media, and the election commission.” It was, under such circumstances, incumbent on the superior judiciary, comprising the Supreme Court and the High Courts, he said, to play a crucial role in protecting fundamental rights, the democratic apparatus, and the institutions set up to protect it. “Unfortunately, in the recent past, at least in the last six to seven years soon after the Modi government came to power, the Supreme Court, by and large, has not lived up to its expected role and has not been able to protect rights and institutions.”
“There are a number of major politically sensitive cases that came to the Supreme Court. In all these cases, the Supreme Court violated the principles of natural justice by accepting unsigned notes given by the government in sealed covers and deciding these cases on the basis of those notes,” Bhushan claimed. To illustrate, he referred to the 2019 judgement by a five-judge Constitution Bench of the Supreme Court in the Babri Masjid-Ram Janmabhoomi case, by which, the title over the disputed land in Ayodhya was unanimously granted to the deity Shri Ram Virajman, allowing the construction of a separate temple where the Babri Masjid once stood. The Sunni Waqf Board, on the other hand, was allocated five acres of land in a separate site to build a mosque.
He further pointed out that the top court had thrown out a petition for a probe into Prime Minister Narendra Modi for allegedly receiving cash payments to the tune of around Rs 40 crores in late 2013 and early 2014, just before the then-chief minister of Gujarat went on to win a landslide victory in the 2014 general elections. This case, in which Bhushan appeared for Delhi-based advocacy and public interest litigations group Common Cause, was based on the Birla-Sahara Papers – diaries, emails, notebooks, spreadsheets, and other documents seized during raids on the Aditya Birla Group and the Sahara Group offices, which allegedly implicated the prime minister.
Bhushan also referred to the Supreme Court giving a clean chit to the government over alleged irregularities in the deal to procure 36 Rafale fighter jets from France, dismissing all the petitions seeking an investigation by the Central Bureau of Investigation, and the apex court’s refusal to order an independent probe into the death of Special CBI Judge B.H. Loya, who was presiding over the high-profile Sohrabuddin Sheikh fake encounter case involving the Union Home Minister Amit Shah.
Supreme Court not taking up cases it ought to and taking up cases it ought not to
While speaking about the cases that ought to have been taken up by the top court, Bhushan mentioned the challenges against the controversial Citizenship Amendment Act and the move to abrogate Article 370 and divide the erstwhile state of Jammu and Kashmir into the union territories of Jammu and Kashmir, and Ladakh. “These cases have been pending for a long time, languishing in the courts. Also, there are several habeas corpus petitions which have also not been taken up for a long, long time. The Supreme Court also ought to have initiated suo motu proceedings against instances of the government illegally and without due process demolishing the houses of people accused of any crime in a flagrant display of what is called ‘bulldozer justice’.” On the other hand, it was unfortunate, Bhushan said, that the top court had entertained a petition filed by a Bharatiya Janata Party leader urging it to take cognisance of forceful religious conversions. “This is the same kind of rhetoric that this right-wing, Hindu majoritarian, fascist BJP government spouts…That there are large-scale forced conversions in the country. This is an issue that the Supreme Court ought not to have taken up as a public interest litigation, but it has.”
Bhushan, however, concluded on a hopeful note, saying, “Recently, under Chief Justice D.Y. Chandrachud and former Chief Justice U.U. Lalit, things have certainly improved and the Supreme Court is now playing a somewhat better role in protecting rights and liberties.”