DC Debate: Comparative negligence?

DC DEBATE: Comparative negligence?

Raju Ramachandran Vs P.P. Rao

Raju Ramachandran: Collegium system isn’t democratic

In a truly democratic system of judicial appointments, the elected representatives of the people and the consumers of justice would be equal participants, along with the judges

The unfortunate episode involving Gopal Subramanium once again highlights the need for doing away with the collegium system for appointments to the higher judiciary. In this particular case, of course, it is the government which is at fault. This is more than clear from the public revelation by Chief Justice R.M. Lodha, that the segregation of Mr Subramanium’s name was done without his knowledge and consent. But we need to understand the reason why the government resorted to leaks and planted stories to make its viewpoint known.

The judicially created collegium system has reduced the role of the government to almost that of a spectator. On the question of “suitability” of a candidate for judgeship, the “collegium judgment” makes it clear that the judges know best. This, they say, is because the courts are the arena where lawyers perform, and it is the judges who can observe and assess their performance. The viewpoint of the executive is treated as relevant only if there are aspects involving national security, involvement in criminal cases, etc. With this kind of a limited role for the executive, the process of judicial appointments has become completely undemocratic.

Unelected judges have the power to strike down laws made by Parliament and the state legislatures, as also amendments made to the Constitution made not in the exercise of mere legislative power, but high constituent capacity. And yet the elected representatives are left with no say in their appointments. The views of the executive, or for that matter the political class, on the social philosophy of a judge, for instance, has no bearing on suitability once the collegium is satisfied about the technical competence of a candidate.

In a truly democratic system of judicial appointments, the elected representatives of the people and the consumers of justice would be equal participants, along with the judges. Names for consideration would emanate not only from the judges, but the other stakeholders as well. Objections to names would be thrashed out across the table, in strict confidentiality. For this, a proper statutory mechanism needs to be created with constitutional sanction. The National Judicial Commission is a work in progress from the previous Parliament, and needs to be seen through. With set procedures in place, it will ensure that the reputations of individuals are protected, while providing a forum for raising legitimate objections.  

In the present system, the government can at the most return a recommendation for reconsideration. And reconsideration on those very limited grounds. If the collegium reiterates its recommendation, the government has no option but to make the appointment. It is in this situation that the dirty tricks department begins to get active.

Another problem with the collegium is its constantly changing composition, with retirements of judges happening every now and then. And so, the collegium which recommends a candidate will not be the same body which will sit to consider a government’s request to reconsider a recommendation. A member of a subsequent collegium may not have even supported a particular recommendation in the first place, if he had been on the collegium then. Surely, after 64 years, we can substitute institutional mechanisms for clumsy judge-made solutions.

Raju Ramachandran is senior advocate, Supreme Court

P.P. Rao: Judges’ can’t be overruled

The collegium system is not perfect, but it is relatively better than the earlier one. The need for reform is obvious — to ensure that the recommendations of the collegium are not sabotaged.

It appears to be a case of sabotage, not a fiasco. Several questions arise, mainly about the government’s handling of the recommendation made by the collegium and not about the collegium system. Was the recommendation faulty? Has the government acted strictly in accordance with the consultation process in terms of the law declared in the Second Judges’ Case? Who leaked the intelligence reports to the media and why? Was the media justified in flashing the news and harping on it  without waiting for the collegium to respond? Could the government withhold one recommendation suo motu  and push forward other three proposals? Was Gopal Subramanium’s reaction, before the collegium could consider the whole issue,  justified? What were the options before the collegium thereafter?

After a gap of 15 years, this particular collegium recommended two distinguished lawyers for elevation. The entire Bar welcomed it. The collegium recommended Mr Subramanium’s name having regard to his experience, ability, reputation and  standing at the Bar. He is regarded by one and all as a sincere, painstaking and competent lawyer. Successive attorney-generals entrusted important and sensitive cases to him. The Supreme Court  appointed him as amicus curiae in some cases. He was CBI lawyer for a long time. He was ready to sacrifice his lucrative practice for public duty and lead the austere life of a judge.

I am glad the Chief Justice of India, Justice R.M. Lodha, placed the facts in public domain on Tuesday. His view that the government has not acted in the manner required by law when it unilaterally decided to withhold the recommendation and process the remaining three is unassailable. The independence of the judiciary is a part of the basic structure of the Constitution and cannot be compromised. The agency  responsible for leaking the intelligence reports to the media is certainly not the collegium nor was it Mr Subramanium. It has done great disservice to the nation.

The President could have referred the file back to the government to obtain the response of the collegium. That did not happen. The media could have exercised self-restraint and, instead of flashing the intelligence reports unmindful of the irreversible damage likely to be caused, waited for the response of the collegium to the government’s hasty decision.

After the media blow up, the plight of Mr Subramanium can be imagined. The CJI was abroad, members of the collegium were on vacation. In the meanwhile,  the intelligence reports  were being discussed all over. Mr Subramanium must have felt suffocated and decided to withdraw his consent. Perhaps he could have awaited for the final decision of the collegium.

Even if the collegium were to  reiterate its earlier recommendation, rejecting the intelligence reports and ensuring his appointment, the damage done to his reputation in the meanwhile could not have been undone. After his letter, the collegium had no option but to close the chapter. The collegium system is not perfect, but it is relatively better than the earlier one. The need for reform is obvious — to ensure that the recommendations of the collegium are not sabotaged in such a manner.

P.R. Rao is senior advocate, Supreme Court