New Delhi: The Supreme court on Thursday said there was no bar on the collegium to go ahead with its work to appoint judges for the higher judiciary, which is plagued with large-scale vacancies. The indication that it was not interfering with the functioning of the collegium system came while the apex court decided to give nine more days to elicit suggestions to improve the functioning of over two-decade-old controversial system of appointment to bring greater transparency in it.
“We want to indicate that we don’t want to delay. We don’t want to say anything to the collegium. We have not said anything to the collegium and we will not be saying anything. Whatever they want, they can do. If they do not want to proceed, let them not. It is their business. Let us not delay the proceedings," a five-judge Constitution bench headed by justice J.S. Khehar said. Justice Khehar, who is fourth in seniority in the apex court, has kept himself away from the five-member collegium as he was heading the bench which on 16 October had quashed as unconstitutional the National Judicial Appointment Commission (NJAC) Act aimed at the replacing the collegium system of appointing judges by judges to the higher judiciary.
The apex court asked the attorney general Mukul Rohtagi to issue a public notice inviting representations and suggestions from all quarters of the public and web-host on the website of the law and justice ministry by 1700 hours of 13 November. It also accepted the view of the Bar Council of India that the apex lawyers’ body be allowed to hold a meeting with all state bar associations and advocates’ bodies from across the nation for compilation of various suggestions.
“We appreciate the efforts made by the attorney general for India. He may web-host the compilation and issue a public notice. Likewise, all those who desire to make suggestions may do so directly, on the website of the department of justice, ministry of law and justice, New Delhi. Suggestions received by 17:00 hours on 13 November shall be entertained. No further suggestions will be entertained," the bench, also comprising justices J. Chelameswar, M.B. Lokur, Kurian Joseph and A.K. Goel, said while posting the matter for hearing on 18 and 19 November. It also said the hearing would be limited only those counsels who are short-listed and allowed time by a committee comprising the attorney general of India, chairman of the Bar Council of India and senior advocate Fali S. Nariman.
The apex court took on record the compilation of over 60 suggestions from various sources filed by the additional solicitor general Pinky Anand and senior advocate Arvind P. Datar who had tabulated suggestions from various associations and lawyers. Several advocates urged the bench to grant them hearing and sought more time to make suggestions.
They also urged for time on behalf of private individuals for the same purpose. Bar Council of India chairman Manan Kumar Mishra also sought the court’s indulgence in allowing the top body of lawyers to collect representations from all stakeholders and submit their suggestions.
The suggestions submitted to the court were divided into transparency, need for eligibility criteria for appointment of judges, establishment of a secretariat for the collegium and evolving a mechanism of complaint redressal. As certain suggestions could not be classified under any of the four categories, a fifth category—“miscellaneous"—was added to the list, Datar told the court.
On the issue of transparency, suggestions were made that “there must be well-defined criteria that should be established by the Supreme Court for appointments to the high courts and to the Supreme Court. The criteria must refer to age, merit, seniority, integrity, income criteria, academic qualification etc". It said the criteria should be made available on the website of the Supreme Court as well as of high courts while in some suggestions, it was said that these vacancies should be notified six months in advance. Applications should be permitted for appointment apart from the names being recommended by judges/collegium. Eligible candidates who are to apply must give specific details. “In certain cases, it was suggested that there should be a standard questionnaire. It was also suggested that the names of applicants/candidates may be supported by recommendations of two three senior advocates," the suggestion said.
The court, however, reiterated that there will be no drastic change and everything will be within the guidelines of the nine-judge judgment of 1998 that had laid down the elaborate framework for the collegium system. “Everything will be within the guidelines of the nine-judge judgment. We can’t lay down parameters for eligibility criteria. Attempts are on to infuse transparency", the bench said. As the Bar Council of India said it would like to give detailed suggestions after consulting state bar associations and sought some time for it, the bench said “we will like to have a debate. Bar Council of India is a very important part. They want to make some submissions ...we feel it will be a good idea to allow them."