To tackle nepotism, bad appointments by collegiums, rigorous selection a must: Senior Advocate Rajeev Dhavan

The ongoing tussle between the judiciary and executive over judicial appointments has taken several turns in the past few weeks. When the government returned the Supreme Court Collegium's recommendation of Uttarakhand High Court Chief Justice KM Joseph for reconsideration, it was an indication of the ensuing clash between the government and judiciary.

While the matter is still under debate on whether the Centre's decision to return Justice Joseph's name amounts to "unacceptable intervention" by the executive, the government's message was clear — it was in no mood to cede ground.

 To tackle nepotism, bad appointments by collegiums, rigorous selection a must: Senior Advocate Rajeev Dhavan

File image of the Supreme Court of India. AFP

This the Centre indicated by raising the issue of nepotism in judicial appointments. Earlier this year, it had pointed out that at least 11 of the 33 names the Allahabad High Court Collegium had recommended for elevations in February were advocates with links to sitting and retired judges.

However, after the collegium reiterated Justice Joseph's name for elevation to the Supreme Court and the Centre consented to his appointment, it seemed that an amicable solution could be on the anvil.

But now, the new row triggered by the Centre indicates that the fight is far from over. The government notification released on Saturday, which confirmed the appointment of three high court judges to the top court, placed Justice Joseph's name in the third spot below justices Indira Banerjee and Vineet Saran.

Every intervention by the Centre has been touted as an attack on the independence of the judiciary. However, the working of the collegium itself has attracted severe criticism from various quarters, and the issue of nepotism in judges' appointments has critically dented the image of the higher judiciary.

On these concerns, Senior Advocate Rajeev Dhawan said nepotism was a reality in judicial appointments, and the way to address the problem was to add more rigour to the selection process.

"There is nepotism in judicial appointments. Many worthless people have entered high courts and the Supreme Court," he said. "The only answer to such nepotism is a rigorous process at both collegiums (high courts and Supreme Court).

Referring to the 2013 case of the Punjab and Haryana High Court, where the collegium's recommendation of eight advocates for elevation had attracted strong criticism for promoting nepotism, Dhavan said: "In the Punjab and Haryana High Court case, there was an uproar, and lawyers and others protested. Collegiums should not be blind to such criticism. Maybe when there is a balanced National Judicial Appointments Commission (NJAC) unlike the last one, then more rigour can be added to this process."

However, he pointed out that "after the KM Joseph affair, one is very suspicious about any veto the government exercises".

"In Justice Joseph's case, they claimed seniority as the reason for returning his name. That is why the government notification places his name below those of two judges, though he has been elevated," Dhavan explained. "In other cases, they bring in this relative issue. Ideally, relatives should not practice in the same court. But the norm is that they do not practice in front of their relatives. Therefore, one needs to know the real reason behind any recommended name being blocked. We have to see whether the judge in the collegium actually sponsored his relative and favoured counsels of his ilk."

The senior advocate added: "A blanket reason can never be a reason for veto. Like in other professions, there are second and third generations of professionals even in the legal sector. Barring people from entering a profession simply because family members are in the same profession is a policy that will not pass the muster. However, individual nepotism has to be rigorously examined."

While the government's initial decision to not elevate Justice Joseph was considered an attempt to subvert the judiciary, the fact remains that in the past, multiple such attempts have been made not just by the government but by the judiciary itself in some cases.

Responding on both these points, Dhavan said: "The appointments to the Supreme Court has been whimsical in many cases, even when the judges have seniority. At times, the appointments were made when the seniority principal did not apply and were made simply because of the whims of the collegium."

"We cannot keep hopping back to the bad practices of the Congress. That is not justification to appoint judges the Union of India likes. A glaring example is of the non-appointment of GP Singh of the Madhya Pradesh High Court (in the eighties) to the Supreme Court as he had refused to be part of the government's attempt to appoint committed judges. It is not a question of which regime has done what in the past; I am fed up of these comparisons. The question is: what should happen now, and how do we move on?"

The collegium has exposed severe flaws, made apparent in "wrong" appointments, and government intervention is not desirable in any way. So what is the way out of this deadlock?

"On judicial appointments, the Union government has a hold on the Supreme Court in exercising its veto," Dhavan said. "The statement of Law Minister Ravi Shankar Prasad that he is not just a postman is shocking. We need to ask him what he believes his role is. I think if they know anything (more on the judges), they should pass on the information to the collegium. That's it."

The senior advocate stressed that there was undoubtedly a "need for a much more open discussion", but not one like the American confirmation procedure. "The loudest organised voice cannot be given the most credence," he said.

Not ignoring the multiple errors collegiums have made in making good appointments, Dhavan pointed out that at the sesquicentennial celebrations of the Allahabad High Court, former Chief Justice of India JS Khehar had said that when he became a judge, his legal knowledge was only service law. "I had asked then, and I ask now: how did he got appointed then?"

In 2015, the Supreme Court had struck down the NJAC Bill, which was meant to replace the collegium.

Dhavan said: "Right now, we have to understand that the new NJAC will require constitutional and statutory change. For the moment, we have to deal with the collegiums. That process should become more rigorous, and this government should stay in its hand. However, I am not waiting for the new NJAC to deliver soon, as it involves a long political process including a constitutional amendment to a Bill."

Lack of wider deliberations and transparency has been one of the biggest criticisms of the working of the collegium system, and Dhavan cites a perfect case to drive home the point. "I was once told by a Supreme Court judge that he often heard about judicial appointments through newspapers. When I went to the then chief justice and asked why he doesn't consult all judges, he said there was no need to do so after judgments," he said. "One way to strengthen the procedure and (get more) inputs could be for the collegium to consult the whole court (before making recommendations and appointments).

A number of Supreme Court judges met Chief Justice of India Dipak Misra on Monday as they are "anguished" by Justice Joseph's seniority being lowered. Misra has decided to consult the attorney general on the matter.

Now, as the ground is ready for the judiciary and executive to make new assertions of their respective powers, it would be most desirable that a full court is actually convened, and all issues related to the judiciary are taken for a comprehensive debate.

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Updated Date: Aug 06, 2018 19:06:54 IST