Sunday, February 25, 2007
Supreme Court's collegium
Another glaring instance of how the Supreme Court's collegium responsible for the choice of Judges in the Higher Judiciary does not jealously guard its primacy accorded by the Supreme Court's Opinion in Third Judges Case has come to light. Manoj Mitta's story in Times of India shows how Justice S.Ashok Kumar was appointed as a permanent Judge of the Madras High Court. The new CJI, Justice K.G.Balakrishnan, the story says, recommended Justice Kumar's confirmation, bypassing other members of the SC collegium. As the story suggests, is it an example of executive managing its way in the collegium system? If it is true that the previous CJIs too favoured Justice Kumar's extension - despite an adverse IB report - as additional Judge, does it mean the executive's influence is writ large on the collegium, especially, the CJI, who does not have any veto power? The story, in fact, partly contradicts what the SCBA was arguing the other day in New Delhi, (see my earlier contribution under the comments section) against the primacy of the collegium. The primacy of the collegium practically means the primacy of the CJI, and with lack of transparency, one does not know the factors which merit serious consideration by the CJI in the matter of appointments or transfers. In the Third Judges Case (In Re: Under Article 143(1) of the Constitution of India), delivered in 1998, the Supreme Court discussed at length the concept of collegium and the importance of the consultation process, only to dilute the element of arbitrariness implicit in the Second Judges case judgment, equating primacy with the CJI's view. It appears that arbitrariness is now back thus defeating the very thrust of the Third Judges case judgment.