Regarding inviting suggestion of collegium system from public
P SURESH <firstname.lastname@example.org>
Nov 12 at 1:02 PM
Subject: Regarding inviting suggestion of collegium system from public
About National Family Harmony Society®: “National Family Harmony Society®” NFHS is a Non Governmental Organization (NGO) promoting the cause of “family harmony” and“gender equality”. It is registered under “The Karnataka Societies Registration Act, 1960” and is based in Bangalore. We have branches in more than 16 states and in abroad too. We have approximately 14500 members all over India. To know more about us please visit http://www.family-harmony.org / www.498a.org.in.
- Transparency in the process:
DISCUSSION: There is a set process of appointment of Judges to the lower Judiciary, i.e. Magistrate Court, Session/District courts but in general there is lack of visibility on “How the Judges are appointed/selected to the higher courts i.e. High Court and Supreme Court”. The common public of this country thinks there is secrecy in the appointment of Judges.
a. The sanctioned strength and the vacancies should be prominently published in the respective High Courts and Supreme Court on live basis, i.e. it should indicate the true/live/current status at any given point of time.
b. The process followed to appoint a Judge, right from the point of inviting application to appointment should be published in the respective High Courts and Supreme Court websites.
c. Inviting application for the Judges should be published in the News Paper, Bar Council Notice board and Court Websites, as is done for appointment of any vacancy of Government Job.
d. On appointment, the detailed Resume of the Judge, alongwith the summary reports of the intelligence agencies, Law Ministry report, comments of the President of India etc should be displayed in the Court Website. This will instill confidence in the mind of general/common public that they are in safe hands.
e. Upon appointment, the reason of appointment on both angles viz. Honesty/Integrity and “eligibility criteria” should be published.
f. The asset of the Judges including his nearest family members and his income should be regularly published in the website.
g. Any document, file or report associated with the appointment of Judges should be obtainable under RTI and should be available in the public domain.
h. The reason for rejection of a particular lawyer for appointment as Judge must be spelt with clarity and must be available in public domain.
i. The reason of appointment/selection of a particular lawyer compared to another lawyer for appointment as Judge must be recorded in writing and should be available in public domain.
j. It is not proper to keep Executive totally out of the selection process either on the ground that “Executive is the biggest Litigant” or because “Judiciary does not trust Executive” or because “Executive will try to push Judges favorable to them”. The opinion of the Executive may be kept as “Not Binding” on the selection process but the opinion/report/suggestions of the Executive must be obtained by collegium system and in case if the objection of the Executive is overruled then the reasons must be recorded and published accordingly.
k. There is lack of transparency in the appointment of Judges because there is a strong argument/belief that “Judges are appointing Judges”. This perception can be easily overcome if “proper written procedure/system” is in place and it should appear that the system is selecting Judges not that “Judges are appointing Judges”.
- A Secretariat for the collegium
DISCUSSION: Official structure of the collegium system is required as now it seems to be run on temporary basis.
a. An official structure for the system should be notified.
b. It should be headed by a secretary general.
c. They should maintain a separate website of its office.
- Minimum Eligibility Criteria for the prospective judges
DISCUSSION: At present, the vacancies are filled with eligible lawyers and senior district judges in the ratio of 2:1. So in the higher courts the majority of the vacancies are filled from advocates who are “Senior/Experienced Advocates”.
a. The collegium system seems to be unfair to the District Judges who gets less opportunity to be elevated to the higher courts hence the ration should be modified to 1:1.
b. To have proper check and balances, opinion of two independent committees should be sought. These committees should work independently of the normal selection procedure. First committee should consist of 5 members, all of them consisting of persons of eminent nature from different walks of society. Another committee should consist of 5 members, consisting of lawyers and Judges from another state. The report/opinion of this committee will not be binding on the collegium system but will be of advisory in nature but it will help in having proper check and balances. But again, in case these committees put objections, then the collegium system should record reasons on overruling them.
c. No advocate shall be appointed as Judge unless he has a success ratio of 65-70% in the litigation has fought.
d. No District Judge shall be appointed as higher court judge if more than 50% of his judgement has been overturned by the higher court.
e. Those advocates having strong views in one way and expresses those in public should be disqualified straightway and this should be one of the parameter of selection.
f. Those having strong one sided opinion about caste/religion/gender should be disqualified automatically.
- Dealing with the Complaints against the prospective appointments.
DISCUSSION: Off course there is every possibility of false and frivolous complaints being filed against possible appointees to prevent them from being elevated but on the other hand there may be genuine complaints as well.
a. All complaints should be filed in the office of secretary general of Collegium system.
b. No complaint should be entertained which are merely based on assumption, rumors or hearsay.
c. If the complaint is wrt corruption, then it should be verified/investigated by CBI or any other competent agency.
d. If the complaint is of the nature of nepotism, then the specific orders on which complaint is there must be looked by a judicial agency, consisting of retired Judges. The members of this judicial agency must be from different state than the candidate against whom complaint is filed.
e. If the complaint is of the nature of amassing wealth disproportionate to the known income then it must be verified by Income Tax department or any competent agency.
f. If there are charges of known properties disproportionate to the known income then it must be verified by competent agencies.
g. While applying for the post of Judge, complete details of all the relatives practicing in the same High Court must be sought and an undertaking must be sought that they will not hear any matter of them or from any advocate from their office.
All said and discussed, whether it is “collegium system” or “NJAC”, I stress on below line.
Even “vacancies in the posts of Judges” or “delay in appointment” is acceptable but one wrong/undeserving selection must be avoided.
P Suresh, 09880141531
President, National Family Harmony Society