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The future is now: Smartest bigshots of the bar put some good & different ideas to neo-collegium bench today

SC open to good advice
SC open to good advice

As the Supreme Court’s five-Judge Constitution Bench presided over by Justice JS Khehar began its hearing on reforming the collegium (the in-house mechanism to recruit Judges to the higher judiciary after its recent revival by the same bench) the bench sought advice from counsel on both sides on how to navigate the plethora of diverse proposals which it received, including establishing a permanent secretariat to assist the court, a limit on transparency in case of rejected candidates, city-biases, seniority and more.

Khehar said: “Help us in the first step. We have received suggestions from diverse groups, eminent people like retired judges. They are so many and so diverse. We don't know how to proceed in the matter. Please tell us how to go about it without adding, subtracting, deleting (the existing collegium system) and maintaining it. We can't reinvent the wheel.”

After listening to senior counsel, Fali Nariman, Anil Divan, Arvind Datar, Rajeev Dhavan, KK Venugopal, the attorney general Mukul Rohatgi, solicitor general Ranjit Kumar, TR Andhyarujina, and Gopal Subramanium, the bench asked Datar and additional-solicitor-general Pinky Anand to act as rapporteur for petitioners and respondents respectively, so as to compile the proposals, and identify areas of agreement and disagreement.

Nariman submitted that the existing procedure to appoint the Judges should be the basis, as it has been working for the past 20 years - right or wrong, and the bench should aim at transparency as much as possible. He underlined the need to expose the lack of receptivity of the collegium to post-decisional hearing.

He cited the infamous Justice Dinakaran affair, wherein the then collegium refused to hear him or others against recommending Justice Dinakaran for the appointment. The collegium had to ultimately recall its recommendation in the face of mounting public criticism.

Anil Divan said it is a matter of craftsmanship for the bench, as it has to now decide what has to be confidential, and what can be revealed with regard to the appointment process.

Justice Khehar agreed with KK Venugopal that the fundamental of the collegium has to remain, and there cannot be wholesale change.

Both petitioners and respondents agreed that there has to be a full-time secretariat for the collegium, and the Registrar of the Supreme Court doing the extra job is no good.

But there was disagreement on other aspects. The SG suggested that nobody’s name should be jeopardised in the name of transparency, as information regarding rejection of a candidate by the collegium has the potential to tarnish his or her reputation.

Rajeev Dhavan reminded the bench that collegium can’t be expanded, as the current bench was bound by the decision of the nine-Judge Bench which fixed the current strength in 1998. But, he said, the area of consultation can be expanded.

The AG’s remark that a candidate from metropolitan cities cannot be compared on par with another from non-metropolitan cities, invited criticism. Rajeev Dhavan remarked that the Supreme Court and the high courts should have both apples and oranges, as long as they are tasty, and almost equally good. Only this will ensure regional and gender balance, he said.

According to Dhavan, while seniority is a useful component, outstanding merit too ought to be recognised, while recalling how the Privy Council appointed a candidate as a Judge, for his outstanding merit, even if his age was not consistent with the general trend.

Gopal Subramaniam too agreed with Dhavan that Judges from metropolitan cities and those from non-metropolitan towns must stand a equal chance.

As he put it, judges in different areas will have different degrees of competence, but the test should be whether a candidate will be quick to learn and adapt to change and the demands of the profession.

Striking a different note from others, he favoured secrecy in collegium meetings. Transparency for the website must be different from the one applicable internally, to the members of the collegium, he said.

Elaborating further, Subramaniam said the principle of legitimate expectation of seniority must not be carried too far so as to compromise merit. ‘’Don’t dilute your ability to discern, through delegation”, he cautioned the Judges.

Mathews J Nedumpara brought relief to the otherwise serious hearing, by his loud and vociferous intervention accusing Justice Khehar of bias against him, and for always curtailing his opportunity to make submissions. But when he did submit, the bench allowed him to vent his grievances.

The bench agreed with the counsel that extent of transparency, eligibility criteria, secretariat’s functions and responsibilities, and the mechanism to deal with complaints and grievances would constitute the four broad categories under which the reform proposals would be considered.

The bench will continue the hearing on Thursday, 5 November.

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