Collegium issue: Government yet to come to terms with NJAC being struck down, says Justice SK Kaul

Justice SK Kaul said that bright lawyers choose not to opt for judgeship over uncertainty in judges' appointments

Retired Supreme Court judge and former member of the collegium, Justice Sanjay Kishan Kaul, told Moneycontrol that the political dispensation is yet to come to terms with the fact that the National Judicial Appointments Commission (NJAC) Act has been struck down by the apex court, thereby making the working of the collegium system complex.

He said, “The political dispensation has not come to terms with the fact that the parliament passes the bill almost unanimously and that it is struck down; that is what has made the working of the collegium system a little more complex.”

The collegium system is the method by which judges of the Supreme Court and the high courts are appointed and transferred. The CJI, with the four senior-most judges of the apex court, makes the recommendations and sends them to the government for consideration. The government, upon analysis, either takes the recommendations forward or sends them back to the collegium for reconsideration. The system evolved using Supreme Court judgments and not by an act of Parliament or a constitutional provision. The First Judges Case (1981), Second Judges Case (1993), Third Judges Case (1998), and NJAC Case (2015) evolved the collegium system and upheld it as the law of the land.

In 2014, the Union Government tried to replace the collegium with the NJAC. The NJAC comprised three Supreme Court judges, the Union law minister, and two civil society experts. It further mandated that a person would not be recommended by the NJAC if any two of its members did not accept a recommendation. However, it was struck down by the Supreme Court in 2015.

Kaul, who retired on December 26, was the second-most senior judge at the SC for over a year. He was a member of the collegium for over a year and a half. He said, “There is no perfect system. We had a system (of judge appointments) operating from the 1950s to the 1990s. In the 1990s, the collegium system started operating, possibly for good reasons that also worked well for quite some time. But it was never fully acceptable to the political system, irrespective of who was in power. Ultimately, a law was passed; that law was challenged, and it was quashed. It was found to be unconstitutional as independence of the judiciary was affected.”

The collegium system has been criticised for a lack of transparency in the selection process. Over the last few months, the government and the apex court have been warring on the issue.

He said, "The government certainly wants a greater role for itself (in judge selection), and it feels that under this system it does not have that role. The judicial perspective has been so far that it gives enough role and thus must be implemented.”

Kaul noted that the government and the collegium must have a formal exchange of views on candidates who have been shortlisted for judgeship whenever the occasion arises. He said, “I am not in favour of backroom diplomacy on this. If the collegium and the government interact formally on this issue, everything will be on paper, and their objections against the selection of a candidate will be on record.”

Kaul opined that bright lawyers choose not to opt for judgeship over uncertainty in judges' appointments. He led the bench that heard a contempt case against the government over not clearing collegium recommendations on time, thereby disrupting seniority among judges.

He further said, “As it is in the process of appointing judges, more than 50 percent of the names fall by the wayside by the time the collegium clears it. Even if those are not appointed, we are at best keeping pace with vacancies that arise every year. If I were to persuade good lawyers to join the bench, they would express reluctance, especially on the basis that there is no certainty about it. It is necessary to address these issues. We can’t turn a blind eye to it. If we do that, we don’t accept a problem, and if we don’t accept a problem, we will not look for a solution.”