Wednesday, September 15, 2010

Collegium appointment of judges criticised

Collegium appointment of judges criticised

PTI | 05:09 PM,Sep 14,2010

New Delhi, Sep 14 (PTI) A P Shah, former Delhi High Court Chief Justice who gave a landmark judgement bringing the office of Chief Justice of India under the ambit of RTI Act, today attacked the present collegium system of judicial appointments to higher judiciary.

"The present system of judicial appointments in the constitutional courts exemplifies the misalignment between the core values of judicial independence and accountability," he said during the fifth annual convention of the Central Information Commission. Justice Shah, who gave a number of significant judgements including on the disclosure of assets by Supreme Court judges, and decriminalisation of homosexuality, said the process of judicial appointment provides for no oversight.

"Our current appointments system is out of step with democratic culture primarily because it lacks transparency, and provides for no oversight. "The way in which judges are appointed embody a set of values about democracy. Choosing judge based on undisclosed criterion in largely unknown circumstances reflects and increasing democratic deficit," Shah said.

Speaking on efforts to bring more diversity among the benches he said the other interesting development was around growing consensus to promote conscious efforts and bring more diversity on the bench. "Judges are not representatives of any group or constituency.

Their duty is to do justice to all according to law without any fear or favour, affection or ill-will. "Equally, the judiciary as a whole does not need to be representative of any group or constituency. However, a judiciary -- indeed any institution -- that fails to reflect the make-up of society from which it is drawn will sooner or later lose confidence of that society," he said. Justice Shah said an "appropriate balance" between competing principles must be found in something that is best suited to our constitutional set-up and is "uniquely Indian" in that sense. He was critical of the Judges (Enquiry) Bill, 2006 which allows people to file complaints against sitting judges which can then be examined by proposed National Judicial Council.

The council can make reference to Parliament for removal or impose punishment on judges. "This presents an example of the cure being worse than the disease. This is clearly impermissible for it is unconstitutional and also severely undermines the status and functioning of judiciary. What cannot be done by not less than 100 members of Parliament can now be initiated by only one person," he said.

Justice Shah said until an alternative constitutional procedure is devised for removal of "errant judges without compromising independence, the procedure for complaints must, at the first instance, be an in-house exercise and cannot be given to a small and select number of persons".

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