The political parties seem to have challenged the judiciary, which is billed to be one of the trustworthy pillars of Indian democracy, by bringing Constitution Amendment Bill to scrape collegium system for appointment of judges. If the bill is passed, the judiciary will lose its monopoly on the appointment of judges. This bill could not get parliamentary nod during the last Monsoon Session owing to some technical reason and subsequently the legislation pertaining to appointing judges was entrusted with the Standing Committee.  It is crystal clear that the political parties are willing to scrap collegium system. This was clearly reflected during the debate on the Constitutional Amendment Bill in the Rajya Sabha. In the guise of proposed bill, the judiciary will be debarred from the right to appoint judges in the Supreme Court as per the collegium procedure. The Apex Court had provided the right to appoint judges to the judiciary in its landmark judgement in 1993. Since then judges have been appointed through the collegium system and the executive has no role in it.

Before the collegium system was set up, the government used to appoint the judges in the Supreme Court and High Courts. The system had several loopholes as the government interferences were vividly witnessed. On several occasions, the government overlooked the seniority of judges while appointing Chief Justice of its choice and that in turn led to the resignation of many anguished judges. Though the collegium system faced protests, successive governments chose not to interfere with the domain of judiciary. The NDA government brought Judicial Accountable Bill to change the collegium procedure but the move failed to fructify. Astonishingly, the UPA government is going to scrap the collegium system with no solid alternative. The ruling establishment’s move has irked the BJP.

It is obvious that all political parties unanimously agree on the issue of replacing the collegium system. Some of the deserving judges not getting chance to be elevated to the top post as well as biasness in appointment of judges is the main reason behind scrapping the collegium system. Whatever the truth is, judicial activism has clearly been observed for the last few years. The judiciary has intervened into the issues like environment, people’s rights and the functioning of political parties. The political parties have interpreted it as over activism. It’s equally true that some of the judicial orders pertaining to environmental issues created hurdles in carrying out several projects, causing huge loss to the government exchequer. In fact, judicial interference unearthed rampant corruption in the system. All these reasons might have bent the government to review the working pattern of judiciary. In the Rajya Sabha, the MPs cutting across the party line pitched for replacing collegium system. It was only Ram Jethmalani who described the proposed law as against the basic structure of the Constitution. While implementing the collegium system, the Supreme Court must have felt that the process of appointing judges would remain transparent, but now political parties see nepotism in it.  It would not be easy for politicians to prove this apprehension in the appointment of judges. At present, the Supreme Court is silent on this Constitutional Amendment Bill as the legislation is pending with the Parliament. The Apex Court will have to wait till the President gives his assent on the bill and it becomes a law. It is also possible that someone may challenge this proposed bill in the Supreme Court. If it happens, the SC will get a chance to oversee this issue afresh. The SC is unlikely to accept the changes in collegium system only on the basis of political leaders’ anguish over judicial activism.

According to the Constitutional Amendment Bill, neither the government nor the judiciary will have a sole authority in the appointment of judges. Instead, executive along with judiciary will appoint judges. Theoretically, the changes seem to be appropriate but if the government wants to put a check on the judiciary in the name of Constitutional Amendment Bill, it will face the fire lines.  The country is yet to know the reason behind judiciary keeping the right of appointing judges with it and the need to replace this system. The common people would like to know the answers to this question as they see the judiciary as last ray of hope in the current situation.

Undoubtedly, the judiciary is also not insulated from graft charges, however the legal system is deemed to be more transparent in comparison to the politicians and administrative machinery. For the last few years, the judiciary has passed strictures on functioning of the government while delivering its verdict in many issues, which drives home points that only courts can safeguard the feelings and causes of people. It is worth mentioning that many eminent lawyers are active in politics that raises question: are their personal opinions for scraping the collegium system? The politicians are to some extent right that no one should have a monopoly in any system, but any decision regarding courts should be taken earnestly.

During a discussion on this bill in the Rajya Sabha, Law Minister Kapil Sibal said that due to the collegium system, the balance between the judiciary, executive and the legislative has got skewed. The judiciary, in a sense, reframed the Constitution by setting up collegium system in 1993. Is the Law Minister, who is pointing out loopholes in the judiciary, in a position to claim that everything is hunky-dory in the executive system?  If people feel that the autonomy of the judiciary is being eclipsed owing to the government intervention, it will prove sinister to the country and the ruling establishment must take it into consideration.

(An original copy of the article published in Hindi on September 8, 2013 translated by the English editorial. The author is the Group Editor of Dainik Jagran)