Collegium System Necessary For An Independent Judiciary : Arvind Datar

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 judges

Mr. 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 taken

Mr.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 judiciary

Mr. 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 other system, it will work. What has happened earlier is that if you want loyalty and other considerations to prevail over merit, then all the problem starts. Then you can always find fault with the collegium.

Collegium system necessary for an independent judiciary

Mr.Datar : If your aim is to have an independent, robust judiciary, you will not fault the collegium system at all. Is there any empirical data to say that if you take a sample of hundred judges appointed before the collegium and hundred post collegium, the judges after are substandard? I don't think so at all. In the Madras High Court, 17 names went by Chief Justice Katju, they were stalled because the Executive wanted their own names. We moved a PIL, Mr. Venugopal appeared for us, ultimately the appointments came through. Collegium system has worked very well, they may always be aberration, but doesn't mean that you junk the whole system.

Mr. Sebastian: But do you think the collegium system has been unable to secure independence of judiciary because we have seen instances where certain names perceived to be unfavourable by the Executive are not recommended, they are overlooked? And we have also seen certain names haveing open political affiliations being recommended as well. Do you think the system has been able to secure the independence of judiciary?

Mr. Datar: Frankly, the independence of the judiciary can be secured by the Executive respecting the recommendations of the collegium. Ultimately, the last word is of the Executive, the President is to sign the warrant of appointment. If he does not sign the warrant of an excellent candidate, at whose altar is the independence sacrificed? The collegium altar or the Executive altar? Now, for example, you recommend the name of another person who should come to the Supreme Court, that is stalled for six months, for eight months, some names are approved after 48 months, then what is the message that you send? Then I think it is wrong to blame the collegium for independence. It has nothing to do with independence. It makes the best possible recommendations within its limitations. The collegium can only go so far. The independence can be secured if the Executive respect that these are excellent candidates, merit is important and I will appoint them.

On criticism of nepotism in judges appointments

Mr. Sebastian: Another major criticism against the collegium system is that it appoints people who belong to a particular group and most of the recommendations are of either relatives of judges or advocates- of nepotism. Or that there is not sufficient representation of backward classes, minorities, that it is not representative or inclusive. Do you think a system like NJAC, which would be a constitutional body which would be open to public scrutiny, would ensure a more accountable, representative and inclusive system for judges' appointment?.

Mr. Datar: You speak of nepotism, that children of judges get appointed. I have no quarrel with a son or daughter of judge being appointed if he is meritorious. Very often, a child gets into the law because the parents are lawyers. He has grown up in such a family, so traditionally, whether you are a lawyer, a doctor or architect, very often, the son follows the father's profession. That's very common. You see it most in politics. I mean, ironically, look who is accusing the judiciary of nepotism? The fact that he is the son or daughter is not important as long as he is good. I know cases where children of judges were not competent and have not got judgeship. Or you can always take the data, of a hundred appointments, 10-15 may be bad, whether there is NJAC or collegium, nobody can guarantee that only the best of the best will be appointed. It is not possible anywhere in the world.

As far as backward classes are concerned, I don't think your stand is correct, collegiums all over the country are making strenuous efforts to ensure that minority communities, backward classes are all adequately represented. In fact, sometimes, it is the other way round. If you're not in the reserved community, it is much much more difficult to get into the judiciary in some states. We should not forget this. To say that the backward classes are not represented is factually incorrect. All of this talk is without data. There is nothing to show that in a High Court, it is not (representative)...There cannot be proportional representation, if one backward community is 18% of the state, it cannot be aaid that 18 or 20% judges should be from that community. It should be reasonable representation within the parameters. In Madras, there are 17 judges, I think the representation is excellent, we have a very large contingent of women judges also. I know of Hyderabad, Madras, Bombay, Karnataka, representation is more than adequate.

NJAC was not workable

Mr.Datar : When you talk of NJAC, the present NJAC is not workable because of statutory deficiencies. In fact, the collegium came in Justice Bhagwati's S. P. Gupta judgment where it was said that the chief Justice Doesn't have primacy and a collegium of judges should be formed. He meant consultation with the senior most judges. Even today the collegium gets recommendations- as regards the criminal bar, they will ask the judge sitting in the criminal portfolio who is the best possible person. As far as NJAC is concerned, they will act only on the recommendations of the High Court committee. NJAC Seven-member sitting in Delhi will not know who is the best possible candidate in Assam or Rajasthan. That High Court has to recommend names. Once the High Court recommends names and they give reasons- merit, representation of backward classes, gender, minority etc, then I don't see how NJAC will be better than the collegium. NJAC, see, without the judges in the majority again goes to...and I tell you again and again that you can have NJAC, you can have judicial commission, you can have everything but what is wrong with the collegium system? Just think dispassionately. Today, there are recommendations from the High Court- it has got multiple screenings, there is the local Executive level, the consulting judges from the High Court, the Supreme Court collegium, then it goes to the Executive. There are 3-4 tiers of screening.

Collegium can work better if there is a definite time line fixed

Mr.Datar : What is most important is that today the collegium system can work very well, if you fix definite timeline. Today, there is adequate consultation, you have the IB report, Executive opinion is taken, enough inputs, but no timelines. Name goes from Supreme Court collegium, make it four weeks or eight weeks or whatever, but within eight weeks, where one is the best candidate and fit to be a judge, he should be appointed. Again arbitrariness, one gets appointed in three days, but another doesn't get appointed in four months. If you have a timeline, it alleviates insinuations. You can have NJAC but in the current form, it is unworkable. Instead of having a completely new system, the existing system can be made more workable. Has the Executive said that out of the 100 names, 30 or 40 names are so horrible that the collegium system will collapse? How much evidence is there to show that they were totally unfit? We can tweak the memorandum of procedure and finalise it.

If the executive has the final say in judges appointments, it will be dangerous for democracy

Mr.Datar : If the Executive has the final say, you will have a judiciary like that of Russia and other countries, which will not command any respect, once the Executive gets to control everything. Because you require an independent judiciary. Independent judiciary is the most important thing that can happen to a constitutional government. You have a judiciary which is completely independent in a constitutional democracy. In England, there is Parliamentary supremacy and the judiciary struck down several important legislations, several processes were held to be bad. We have to decide where we want to go, if you want to become like Canada, UK etc, then independent judiciary is indispensable for that kind of constitutional democracy. Who does it help by having judges which are only to your liking? Just think for a moment? What kind of judiciary is that? What respect does it command? How do you attract the best talent from youngsters who want to appear before the court if they know the new appointments are Executive-dominated. You are causing long-term damage. The phase that we went through after 1973, why are you repeating it again?.

Criticisms by the Law Minister and the Vice President are not backed by any factual data;

Mr. Sebastian: Recently, we have been seeing a lot of critical comments from the government against the collegium system and the Supreme Court judges appointment process and it has been happening repeatedly. Yesterday also, the law minister made some statements in the Parliament. How do you see this repeated criticism which sometimes borders on aggression?.

Mr. Datar: Any criticism in a democracy is welcome. And it is a must. But this is not based on any factual data or any analysis. If you criticise the collegium system as bad because you say that of a 100 instances, almost 45% to 35% are bad and the system is not working for A, B, C, D work reasons, then either you improve the collegium system or you bring in a law which is constitutionally valid. Even 124(2) simply says consultation with the Supreme Court or the High Court, it doesn't say consultation with the Executive. Consultation only with the judges to get the best possible name. That is the purpose of 124(2). I don't know how the collegium system is perceived as something coming from heaven, which nobody thought of....And this criticism from the law minister, vice president is unfortunate.

Unfair to say Supreme Court should not strike down a law just because it has been unanimously passed by the Parliament

Mr.Datar : It is not fair to say that the Supreme Court should not strike down NJAC because it was passed unanimously by the Parliament. The 42nd amendment was passed unanimously by the Parliament so it should not have been struck down? The 'privy purses' was passed with a substantial majority, so it was not to be struck down? The whole purpose of judicial review is that even though a hundred legislators say so, the judiciary strikes it down. That happens in the US also.

Before the nine judges bench, at the opening of the judgment, the Attorney General says that the Union of India accepts that this is the appointment procedure. That has been accepted by the Union of India. So today the MOP is the procedure, unless you bring in new legislation by amending the Constitution. But why have a new law? Tweak the MOP, tell the points which the Executive feels are interfering with their process, tell what you want...Neither the vice president nor the law minister has really come out by saying...simply saying that the judiciary is going against the will of Parliament, this is a general term, when we talk of serious stuff, we must go into great detail as to what is the irregularity, the violation, how can it be addressed under the Constitution, under the Parliamentary law. Simply saying that the judiciary is high-handed, overreaching, these are vague terms.

Saddening that the Executive is acting in violation of the court directions

Mr. Sebastian: The government is acting in violation of Supreme Court directions. Collegium recommendations are not acted upon and they are sent back, and sometimes, collegium resolutions are segregated and some names are approved and some are kept pending. The court, on the judicial side, is now seized of a contempt petition. How do you think the court should resolve the issue? Should there be a strong direction on the judicial side? Or mere oral observations, nudging or persuasion, that will suffice? Or has the time come for the judiciary to put its foot down?.

Mr. Datar: It is very sad. You say that the judiciary is the least dangerous branch, it is also the weakest branch, other than power of contempt, what do they have? They send the names, you keep it pending for two years or three years, what is the judiciary to do, they cannot issue a mandamus to the President to sign the warrant. This is where constitutional morality comes in. Constitutional Convention should be followed. Now, from the last 30 years, the law is that after the first objection, if the Supreme Court reiterates its position, then the appointment has to go through- that is the procedure established by law, it is binding under 141. If after the objections are given, the Supreme Court considers it, they give written reasons as to why they are not accepting the objections, what is the difficulty in appointing? I don't think the judiciary can do anything in that case.

Refusal to clear collegium recommendations will cause long term damage

Mr. Datar : The Executive by not appointing judge, whom are you damaging? It is a self-inflicted wound in the longer run.

Today, you made sure that X or Y who you don't like doesn't come, but somebody who you like comes in three days, but think of what you are doing to the judiciary as a whole, and down the line what message you are passing on to the other judges, that any unfavourable judgment, anything against us is going to be a stumbling block for you? Every High Court judge seeks to be Chief justice, that is the natural human tendency. But if you convey the message that fearlessness, adherence to constitutional values, giving a bold Independent judgment is going to be counter-productive, that's a very sad state of affairs. You know what happened after Indra Gandhi did it. Did it help our judiciary? It is only after the Emergency that the judiciary went back and this PIL concept came, post the Janata government. The Long-term damage done by Mrs Gandhi is phenomenal! Constitutional amendments, supersession of judges- their reverberations have been felt for decades!

Suggestions to reform the collegium

Mr. Sebastian: What are in your opinion the reforms which the collegium system could have?.

Mr. Datar: At present, the only thing that can be done to make the collegium system work is to fix timelines- from the point the collegium of the High Court makes a recommendation, every step should be four to eight weeks. There is enough consultation with the Executive. If timelines are fixed, the collegium can work. If you don't want the collegium at all, then have the NJAC as recommended by the select committee. The Madras Bar Association had filed a PIL for fixing timelines, the Supreme Court dismissed it on the ground that it is premature. I think the time has now come. Another thing is that suppose Manu Sebastian is recommended as a judge, do you continue your practice once your name has been approved by the collegium? Earlier, when I was a junior, one your name was approved, once you have been recommended, you stop practice. I know some lawyers who stopped their practice and there was seven months' delay and they could practise for seven months- this is before the present government, in the 1990s. If I am a lawyer, if I take it as my honour that I am being called to the bench, if my name is not approved for 12 months, 14 months, what do I do? People would start asking why the name is not approved. So many questions are asked. Then, some other person may also think that why should I face this embarrassment in case my name also goes and it is not recommended. The timeline is the most important thing.....

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

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