Collegium Should Have Permanent Secretariat, Candidates Bank : Ex-SC Judge Indira Banerjee Suggests Reforms

Judges have to remember their oath of discharging their duties without fear, favour, affection, or ill will, even when discharging administrative duties, such as nominating judges or prospective judges for appointment or elevation to constitutional courts, said former Supreme Court judge, Indira Banerjee. “Justice Ruma Pal, who had been a member of the collegium for a while, had shortly after her retirement, written an article where she had said that what goes on in the collegium is often ‘you scratch my back and I will scratch yours’,” Justice Banerjee recalled. She exclaimed, “This is most unfortunate.” Justice Banerjee was speaking on Saturday at a seminar on ‘Judicial Appointments and Reforms’ organised by Campaign for Judicial Accountability and Reforms on the topic of ‘Principles and Framework for Judicial Appointments’. Also on the panel were former Patna High Court judge, Anjana Prakash, Senior Advocate Sriram Panchu, transparency activist and founder of the Delhi-based Satark Nagarik Sanghatan, and Advocate Prashant Bhushan. Even as former chief justice of the Supreme Court U.U. Lalit extolled the virtues of the collegium system in the first session, calling it a ‘near perfect model’, Justice Banerjee, did not mince words when pointing out the flaws of the extant mechanism for the selection or elevation of judges to the high courts and the Supreme Court. She was among the five senior-most puisne judges and as such, a member of the collegium for less than a month in her time. “I am always very frank, whether it is about the judiciary, about the lawyers or anybody else,” Justice Banerjee admitted in the course of her address. We take a look at the ten things Justice Banerjee said about the collegium system. Bound by the collegium system which has been judicially established “Whether you agree that there should be a collegium, or disagree, the fact remains that it has been judicially established. So, we are bound by it,” Justice Banerjee said. “Similarly, you may agree with the NJAC judgement,” she added, referring to the top court soundly rejecting the proposed National Judicial Appointments Commission in 2015, “Or you may disagree, but the fact remains that there is a judicial pronouncement of the highest court of the land which is binding on all.” Having said this, she then asked, “So what do we do within the system?” Need for an impartial judiciary to be balanced with the right to equality of candidates Justice Banerjee said that the need for an impartial, independent, and strong judiciary must be balanced with the right to equality of aspiring judges. “This is because any appointment to the higher judiciary involves expenditure on the public exchequer in the form of the salary, perquisites and various other privileges that the judges of these constitutional courts enjoy. And these privileges are enjoyed not only during their service. There are many benefits which continue even after retirement,” Justice Banerjee explained. The former judge said in this connection that the collegium ought to reveal the procedure for selection, and the discussion that has taken place. If a candidate has not been considered and wants to know why the reason for rejecting their candidature must also be communicated to them. Minimum criteria laid down in Constitution have to be streamlined The minimum criteria for appointment laid down in the Constitution must be ‘streamlined’, Justice Banerjee recommended. She illustrated, “Take for example the criteria that a judge, for elevation to the Supreme Court must have been a judge of a high court for at least five years. That makes almost every judge of the high court, except perhaps a few service judges who retire within two to three years of their appointment, eligible.” What are the criteria to determine, for instance, that a jurist is ‘distinguished’ and therefore, eligible for appointment, must also be laid down ‘in black and white’, she supplied. “I always say that in every case exception may be permissible. But when exceptions are made, there should be good reasons given,” she added. Age, experience, income and other factors for selection as high court judges “Experience should be important, but there should be no rigid divide on the basis of age alone,” Justice Banerjee said while talking about the factors that should be considered for appointment of judges to high courts. “I always believe in the principle of catching them young,” she said, laughing. “Appoint young judges who are competent and doing well before they start earning so much that the salary and perquisites enjoyed by a judge start to feel inadequate.” The second factor which is taken into consideration for appointment as a judge of a high court is income, for which there can be no uniform criteria across the country. “Comparing a person earning any Himachal Pradesh or Uttarakhand, and a person ...

Collegium Should Have Permanent Secretariat, Candidates Bank : Ex-SC Judge Indira Banerjee Suggests Reforms

Awstika Das

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