Sociologist C. Wright Mills, in his book The Power Elite, calls attention to the interwoven interests of the elites, the eponymous “power elite” are those that occupy the dominant positions in society, and their decision has enormous consequences. Applying this theory to the present tussle between the judiciary and the incumbent Modi government explains why the judiciary is not willing to give up on the opaque collegium system.
The theory highlights why the elites are never inclined to give up on their power and do not support the call to be controlled by any external force. The superficial idea of the theory can be illustrated by the previous statement of Justice N.V. Ramana, the former Chief Justice of India, who defended the collegium method of choosing judges, by saying that the selection procedure “could not be more democratic than this.”
Catastrophic effect of Collegiums’ fixation
The most catastrophic effect of the fixation to hold power in their own hand can be best illustrated from the fact that recently, the SC collegium has admonished the government’s law department saying ‘it was not open to the Department to repeatedly send back the same proposal which has been reiterated by the Supreme Court Collegium after duly considering the objections of the Government.’
The government has raised objection over the recommendation of Advocate Banerjee, who happens to be the son of former Supreme Court judge Justice UC Banerjee, who headed a commission in 2006 that ruled that the 2002 Sabaramati Express fire tragedy at Godhra was an accident. The Union Home Minister, Amit Shah has on previous occasion opined that through the alleged report, “Lalu Prasad Yadav tried to paint 2002 Godhra train carnage as accident and not a conspiracy”. Despite, such reservations of the government, collegium has been adamant to recommend the son of the same judge, leading to tussle between the government and the collegium.
In another incident, the government has objected over the recommendation of “gay advocate Saurabh Kirpal” as the judge of Delhi HC, but the collegium seems to be firmly grounded in its stance.
This isolated incident thus, brings out the tussle between the two wings of Indian democracy that are supposed to ‘set aside the ego battles’ and work for effective implementation of justice.
Collegium System and the critics
The Collegium system which is infamously known as the “Judges-selecting-Judges” is the system of selection wherein the judges are bestowed with the power to appoint and transfer judges. Instead of a parliamentary sanction or constitutional mandate, the judgments of the Supreme Court have been made the grundnorm on which the entire collegiums system rests. Owing to the pronouncement of the Second Judge and Third Judge Case, the collegium has acquired the position to prosper unfailingly under the sky.
Raed more: NJAC and Collegium: The hidden truth
Under the existing system, the four senior-most justices of the Supreme Court constitute the Collegium, which is presided over by the Chief Justice of India. The Chief Justice of the High Court and the four other senior-most judges of that court comprise the collegiums for the selecting of a High Court judge. The names recommended for appointment by a High Court collegium reach the government only after the approval by the CJI and the Supreme Court collegium.
The government is only vested with the power to return the recommendation for reconsideration by the Collegium itself. If the collegium reiterates its recommendation then the government is mandated to appoint the respective person.
Scrutiny of the Collegium System
The scrutiny of the collegium system illustrates the opaqueness of the existing system. The entire scheme of things suggests that the power of appointment and selection of judges vests with a handful of privileged people in the helm of authority, who select their fellow mates from amongst the close circuits, raising serious questions of the objectivity of the system in place. Furthermore, the collegium owing to the ‘vested interest selection process’ is against the principle of natural justice.
The wider and progressive interpretation of the legal principle, ‘Nemo Judex In Causa Sua’ meaning thereby “No one should be a judge in his own case” rules that vested interest groups should not be bestowed with the power to be part of judgemental decision-making. It is so because this may lead to biased decision-making, which may adversely affect the validity of the decision. Further, it is due to the collegium system being put into question in various academic debates of the legal fraternity, making it imperative for the government to put a watchdog in place to ensure transparency.
Government’s assertion on Collegium
The government headed by Prime Minister Modi has been trying to bring more transparency in the judicial selection process, since 2014. Earlier, it had brought in the NJAC in 2014 that provided a more diverse legal landscape for the selection of judges but the judiciary in its dictum declared the Act, unconstitutional. Consequently, the legislature was forced to abide by the verdict of the court to continue with the collegiums system. However, more recently, the Union Law Minister, Kiren Rijiju had written to the Chief Justice of India to accommodate a government representative in the collegiums system to ensure transparency in the selection process.
The recommendation of the Union Minister is an outcome of unrest that had arisen owing to the continuous denial of the judiciary to bring about reforms in its selection process. As per a news article in Indian Express, only 250 families have sent judges to the Apex Court. The article brings out the fallacy of the system and justifies the concerns of the government that is backing more transparency in the collegiums system.
Moreover, in a larger sense, the collegium system is also against the ‘Judicial restraint theory’ that prescribes that the judges should limit the exercise of their powers by not influencing the decision or the proceedings with their own preferences and perspectives, but rather by the constitutional and statutory mandates. Thus, the judiciary is vested with the responsibility to ensure that the questions rose on the credibility of the collegiums and that the integrity of the selection process is dealt-in with positive vigour. The judiciary should thus, provide for the incorporation of government representatives in the collegiums system.
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