Amid a growing clamour for an overhaul of the system of appointment of judges to the Supreme Court and high courts, Chief Justice of India BR Gavai has said that no reform could be carried out in the collegium system at the cost of judicial independence and that judiciary must hold primacy in the process.
"There may be criticism of the collegium system, but...judges must be free from external control," CJI Gavai said at a round-table in the UK Supreme Court on Tuesday.
The CJI's remarks come amid increased scrutiny of the current process of judges appointing judges, especially in wake of the alleged discovery of several "wads of cash" from the official residence of former Delhi High Court judge Justice Yashwant Varma.
The clamour for reforms in the process of judicial appointments gained credence after a spirited appeal by Vice President Jagdeep Dhankhar.
At the round-table, CJI Gavai reminded that the Supreme Court had struck down the National Judicial Appointments Commission Act in 2015 as it sought to dilute the independence of the judiciary by giving primacy to the executive in appointment of judges.
The CJI also traced the evolution of the collegium system of appointments through the Supreme Court's judgments in 1993 and 1998. The CJI said that the executive had the final word in the appointments to higher judiciary till 1993.
He said under the system, two senior-most judges of the Supreme Court were superseded in the appointment of CJIs in contravention of the established norm. Both these instances took place under the rule of the Indira Gandhi-led Congress government.
CJI Gavai said that the collegium system evolved as the judiciary's response to the excesses of the judiciary and unwarranted interference to constitutional courts.
CJI Gavai said that as per the two SC verdicts, the collegium was to act in unanimity and its decision was to be final. This, he said, was to "ensure independence of the judiciary, reduce executive interference and maintain the autonomy of the judiciary in its appointments".
The CJI further said that constitutional courts drew salaries from the COnsolidated Fund of India, making judges independent of the executive. He also quoted BR Ambedkar: "our judiciary must both be independent of the executive and must also be competent in itself".
The CJI also referred to the 1973 Kesavananda Bharati judgment of 1973 that propounded the basic structure doctrine to assert that the ruling "affirmed that certain fundamental principles, such as democracy, rule of law, and the separation of powers, are inviolable and cannot be altered."
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