Transparency is hallmark of collegium's procedure, says Supreme Court, but rules out major changes

New Delhi: The Supreme Court on Tuesday ruled out making “wholesale changes” in the collegium system of appointment of judges for higher judiciary but expressed its willingness to evolve a greater transparency “within the existing parameters”. “There can’t be wholesale changes in the collegium system. It has to be within the existing parameters,” a five-judge Constitution Bench headed by Justice J S Khehar said while elaborating about the “tremendous” and “diverse nature” of “unimaginable” suggestions received by the apex court after the landmark judgement of 16 October quashing the National Judicial Appointment Commission Act. [caption id=“attachment_2480530” align=“alignleft” width=“380”] Supreme Court of India. AFP[/caption] “There are so many suggestions. They are so diverse in nature that we don’t know how to proceed in the matter. The diversity is tremendous, unimaginable. It is not possible for us to say we accept this suggestion or deny the other. “Instead it would be better if someone from both sides (petitioners who challenged the NJAC and the government) compiles these suggestions for us. The good minds may sit together and can come out with something final,” the bench, also comprising Justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel, said while posting further hearing for Thursday. The constitution bench put the onus on senior counsel Arvind Dattar and senior government law officer Pinki Anand to try to reconcile all the diverse and divergent views and put them on a chart to be considered on 5 November. However, the court set the limit saying that any suggested change to be considered would not breach the parameters set by the nine judges constitution bench in 1998 in third judges case. While senior counsel Fali Nariman wanted the collegium in its improved version to be receptive to suggestions by the bar or whatever they wanted to put before it, senior counsel TR Andhyarujina wanted the people to know what weighed with the collegium in deciding in favour of a candidate to be appointed judge. While Attorney General Mukul Rohatgi wanted the collegium to re-look at minimum eligibility age of 45 years for appointment as judge in the high court, Justice Khehar said this would result in a tenure at the apex court longer than the existing tenure of five to seven years. Describing the work at the apex court as daunting, Justice Khehar said: “It is a burnt out situation. It is very tough to sustain. The stakes are high. The pressure is tremendous. Aggressions are high. I have spent years here. Seven to eight years in the the Supreme Court is killing.” Justice Khehar has been the judge of the apex court since 13 September, 2011. As Solicitor General Ranjit Kumar said that the “transparency is the hallmark of the procedure to be followed by the collegium”, Justice Lokur wanted to know the “extent of transparency”. “It should not jeopardise anybody’s name” being considered for appointment, Ranjit Kumar said leaving in uncertainty where the curtains will come on the transparency. “Any case where there appears to be lobbying or testimonials” has to be rejected outright, held Nariman, while senior counsel Rajiv Dhawan favoured a permanent secretariat saying that it also involved transparency as it would be maintaining a record. Addressing the poser whether consultative process should be broadened beyond the collegium, Dhawan, while favouring some cap, said: “This is a consultative process and not an exercise in democracy.” Nariman voiced support for permanent secretariat that could be called as Judicial Appointment Secretariat. saying “collegium can’t do it (appointing judges) in spare time. It is a full time job. You can’t do it sitting at 4 pm and getting up at 4.30 pm.” Dhawan favoured relaxing the age limit in favour of “outstanding merit”. He said that collegium will have to apply Mahmood test, named after a judge of subordinate judiciary who was so outstanding that after going through some of his judgments, the Privy Council decided to elevate him and make a judge of the high court. Describing the entire process both “sacred and serious”, senior counsel and former solicitor general Gopal Subramanium said that the best candidate could only be decided after going through the judgments of the person under consideration for appointment. Terming a “myth” all talk about the “experience and specialisation” in a particular stream of law, he said that if a judge wanted to learn then he could learn in no time as he referred to instances since 1950 to buttress his point saying that judges not trained in a particular stream of law pronounced profound judgments. Lawyer R.P.Luthra urged the court that if it wanted to know the opinion of the people then it should put it in public domain as they are the real stakeholders in the justice delivery system. A few senior lawyers and others in the court room were not enough to know the views of the pulse of the public, Luthra said, adding that lawyers had a vested interest. The two-hours of hearing on the issue of evolving mechanism to improve the collegium system of appointment of judges, in a jam-packed courtroom also witnessed a drama with Mumbai-based advocate Mathews J Nedumpara criticising the constitution bench for not letting him speak. “Only few lawyers are representing everybody. This court has no jurisdiction to quash the NJAC. Your lordships have to be fair. The lordships have been very cruel to me in not allowing me to address the court,” he said. To this the bench said, “Don’t take it too far. We have heard you. You wanted to come in press, you are done. We will have you removed from the court if you don’t stop.” Nedumpara had filed a review petition against the 16 October verdict that the judgement had created a public perception that there was “a deceptive/clever attempt on the part of the Supreme Court to retain the power of appointing judges, which they have been enjoying for the last more than 22 years”. He also alleged that the AG was not making proper arguments during the NJAC hearing. On senior advocate Mahalakshmi Pavani’s plea for giving due representation to women in selection of judges, the bench said, “You can’t imagine how wrong you are, we are always looking for a woman judge.” The bench, however, said since she was ready with the table to make out her case, she should also be in a position to tell about the male-female advocate ratio. With inputs from PTI and IANS