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

This is the full transcript of the interview of eminent constitutional lawyer Arvind P Datar, Senior Advocate, taken by Manu Sebastian, Managing Editor of LiveLaw, on the topic of judges appointments and collegium system. The video of the interview can be watched here.Collegium system the best available option for appointment of judgesMr. Manu Sebastian : There is an ongoing friction between the judiciary and the central government on the issue regarding judicial appointments. Several government functionaries including the law minister and also the vice President have been repeatedly criticising the collegium system and also the Supreme Court judgment which overturned NJAC. On the other hand, the Supreme Court, on the judicial side, has expressed displeasure at the central government not acting promptly on collegium recommendations. At the outset, do you think that the collegium system, with all its flaws and limitations, is the best available system for appointment of judges?.Senior Advocate Arvind Datar: Undoubtedly so. I have had the opportunity of now practising for almost 43 years and I have been in the bar before the collegium system and after also, so I know what was the appointment process before and after. I think, over all, the collegium system combines the best of both the worlds- you have proper selection. Let's take the High Court judges appointment. The collegium in the High Court selects best candidates, keeping in mind diversity, gender, other things and then they select the best possible candidates for vacancies. It is a tough task to persuade some eminent lawyers to take up judgeship. After the hard work is done, they would recommend, then it goes to the Supreme Court, the Supreme Court reconsiders it. Comments from the Executive are sought at the High Court level and at the Supreme Court level.Wrong to say that in collegium system, judges appoint judges; views of the executive are takenMr.Datar : If you see it very very carefully in granular detail, you will find that the collegium system actually gets the views of both the Executive and the judiciary. All it says is that once the name goes to the Executive, if any objections are there, they are to be sent to the collegium. After all the objections have been considered by the collegium, then the appointment should go through. That is the only point where the judges have the last word. But in terms of selection of the best possible candidate, taking the views of the Executive, the picture projected is that we are the only country where judges appoint judges, that it is a closed club. That is completely false. It's not the truth at all. There is huge room for Executive play. The Executive has objected and the name has not gone through in several cases.Collegium system has saved the judiciaryMr. Sebastian: One criticism is that it is not something which is mentioned in the Constitution and it is something which has been artificially invented by the Supreme Court through some interpretation. How do you see this criticism?.Mr. Datar: I don't think the criticism is justified. The 'basic structure' has been 'artificially invented' but that has saved the Constitution more than once. The collegium system also- you may call it an 'invention'- but I think it has saved the judiciary in my opinion. If you can see the kind of Executive pressure, supersession of judges, transfer policy in the Emergency, famous letter of Shiv Shankar in 1981 (Union Law Minister Shiv Shankar's letter requesting the chief ministers to obtain the written consent of all the 50 additional High Court judges being transferred as permanent judges to any other High Court in India. The letter created a furore. Then Chief Justice of India Y.V. Chandrachud sent a protest letter to Shankar, asserting that the government could not make transfers without taking into confidence the chief justices of the high courts), there has always been an attempt to probe the judiciary in some way or the other. I don't think 'artificial invention' is correct. If you look at Article 124(2), it says the President shall appoint the judges in consultation with the chief justice of the Supreme Court and the High Court. So the last word is with the President, which is the Executive, and consultations with the Supreme Court and High Court. If you apply your mind, what is the meaning of 'consultation'? Who is the best possible person to recommend the best people from Kerala High Court, etc? It is that court itself. The local High Court and the Supreme Court suggest which are the good names and then they and formally appointed. There is no question of 'artificial'. Ultimately, whichever system you have, if all of us are on the same page that we want to get the best possible talent to man the higher judiciary, keeping in mind the multicultural, multi-religious country like India, if our intention is to get the best possible candidate and merit is the main criteria, then whether you have collegium system or any ...

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

Manu Sebastian

If the executive controls the appointment of judges, it will cause long term damage to democracy

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