Collegium System Has Flaws But The Best Available Alternative In Current Political Scenario: Justice Nariman

“A constitution bench of the Supreme Court found that when you are talking of an independent judiciary, it is extremely important that the head of the judiciary not just be consulted but be followed. Powers in the hand of any one person is liable to corrupt. So, then it was held that there must be a committee of five senior judges, including the chief justice, which must ultimately, by a majority of 4:1, [decide]. That system has its own obvious flaws – judges don’t agree easily. But given the politics of today, I think that it is perhaps the best system in the circumstances…As Churchill said about democracy, it is perhaps the best option available at present.”

Besides this, the retired judge also expressed his dissatisfaction with the efforts underway to expedite the delivery of justice, saying, “Not enough steps are taken, I am afraid. I am not satisfied. A lot more could be done.” He elaborated:

“It’s a complex problem. There are about 20 things that need to be done to address this problem. There has to be a consensus between the government and chief justice of the country and all those involved. It is a difficult question, but it requires a solution. I have my own solutions, but then I am out.”

When pressed further to offer his own suggestions, Justice Nariman recommended the appointment of ad-hoc judges – with expertise in particular areas of law – from the pool of current and former judges to clear the backlog of cases. “That’s the first solution!” he exclaimed, before adding, “Take an ad-hoc judge, whose expertise is, for instance, tax. Make him head a tax bench and give him the advice Lord Mansfield had given to a judge to decide promptly and finish the matter.” Justice Nariman also said that the problem of pendency could be tackled if the government cuts back its own litigation.

“The government it is a massive litigant. Just get rid of them. It is so simple for them to get rid of cases. It can, by paying down its own litigative abilities. The Prime Minister must sit down, appoint a committee which would deliberate as to which way we can completely de-clog the courts of this country.”

While responding to a question about the commonality between the Indian Parliament and its British counterpart, Justice Nariman quoted an excerpt from Justice Krishna Iyer’s judgement in Shamsher Singh – “Not the Potomac, but the Thames, fertilizes the flow of the Yamuna. if we may adopt riverine imagery.” Although Indians had chosen to follow this model, Justice Nariman continued, our model and bicameralism have more ‘teeth’ in the sense that the Rajya Sabha can fail a bill other than a money bill by refusing to pass it. The former judge also pointed out that the president was empowered to exercise a qualified veto and send back a bill for reconsideration, once. Justice Nariman explained, “The model is essentially the same, but I think there are more teeth in the Indian model.”

When asked about the different connotations of the word ‘secular’ in the parliaments of the two countries – India and the United Kingdom – Justice Nariman said:

“The word secular basically means that the state’s hands are off religion, that’s all it means. It means that it is a neutral of religion and does not participate actively in it. However, we have a concept in the Preamble of our Constitution – fraternity – a more powerful concept than secularism. While secularism is only related to the State, fraternity is something positive. You must positively attempt to regard every citizen of India as your brother, and that is there in our fundamental duties chapter as well.”

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

The video of the speech can be watched here