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What it reveals and what it doesn't: Arvind Datar-Pinky Anand report on neo-collegium

The report submitted to the Supreme Court’s Constitution Bench by senior advocate Arvind Datar and additional solicitor general (ASG), Pinky Anand on the neo-collegium received over 60 representations and suggestions from various associations and individuals.

The representations, numbered as R-1 to R-63, and shown in the chart at the end of the report, only reveal the identity of the individuals/organizations, and the category of reform ideas to which they have contributed; it does not yet reveal who has suggested a specific proposal.

By summarising all the reform proposals under five broad categories, without indicating their authors correspondingly, the report requires the readers to obtain the copies of the representations, and read them all over to find out who has suggested what. The five categories are Transparency, Eligibility, Secretariat, Complaints and Miscellaneous.

It is not as if these representations are confidential, but the Datar-Anand team has not found it necessary to place them in the public domain, even though it has compiled them. This has deprived the reader an opportunity to know what each of the 60 representations have specifically proposed to reform the Collegium system.

A quick look at the chart shows that Justice FM Ibrahim Kalifulla (R 46) is the only Supreme Court Judge to have made a representation on the issue so far. His representation pertains to transparency, and Secretariat.

Strangely, Prof Upendra Baxi’s representation (R 51) does not fall under any of the five categories.

Correction: Baxi has clarified that while his name was listed as one of the representations, this was incorrect and he had never actually made any such submissions. He said: "I have never filed any submission on the collegium to the Supreme Court nor do I know why my name features in the list of 60 people who are said to have send in their submission. I write this to clarify that I have issued no statement on the collegium to the Supreme Court. Please rectify the matter under advice to me. As to the suggestion that academics may be appointed under any reform procedure, I have already made my views clear in the speech quoted. I have nothing further to say on this matter."

Like Baxi, there are six individuals, whose proposals could not be grouped under any of these five categories.

But there is one representation about which Professor Baxi may feel happy about.

The proposed Secretariat has been asked to collect information of distinguished jurists for the purpose of appointment as Judges of the Supreme Court - information regarding number of publications and other factors to assess academic credibility being the relevant information.

Prof Baxi, at a discussion on NJAC recently, laughed at Article 124(3)(c) which calls for appointment of distinguished jurists as Judges of Supreme Court, as the President has not found any one suitable to be appointed under this category since 1950. One does not know who made this representation, but if accepted, academics like Prof Baxi, can aspire to be appointed as judges of the Supreme Court.

Fali Nariman has nothing to propose on complaints. There is a joint representation bearing the names of former Chief Justices of India, Justice MN Venkatachalliah and the late Justice JS Verma, which has been shown under Transparency, Secretariat and Complaints. Obviously, this must have been submitted before Justice Verma’s demise and later reconsidered for the present purpose.

They have suggested a “National Oversight Committee” for receiving complaints against all Judges of Supreme Court/High Court including the CJI This committee would have scrutiny panels and Investigation Committee/Panels to assess complaints and frame definite charges. But the bench is unlikely to consider this suggestion, as this pertains to complaint-redressal after appointment whereas the present effort to reform the Collegium is about redressal of complaints with regard to proposed appointees.

Eminent advocate, and former Law Minister, Ram Jethmalani’s representation has been shown only under Transparency.

The representation seeking written examinations for candidates applying for the post of Judges in the Supreme Court has invited mirth from several Court-watchers, according to whom, it would result in inability to fill vacancies, and thus defeat the very purpose of reforming the Collegium. One doesn’t know who has made this representation.

One of the proposals include increasing the number of women Judges, although no guideline has been given with regard to the ideal proportion of women, which the Collegium should aim at. Another representation seeks inclusion of two senior members of the Bar in the Collegium, specially elected for this purpose. This is unlikely to find favour with the bench, as it seeks changes in the composition of the Collegium, as fixed in the Third Judges case, by a larger Bench.

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