nuances of Collegium in light of the suggestions received

eme Court today directed the Central government to submit a draft memorandum of procedure setting out the nuances of Collegium in light of the suggestions received from the public.

The Constitution Bench, which is hearing the case, gave an oral direction to this effect. The direction was given despite reservations expressed by the lawyers including Attorney General Mukul Rohatgi and Senior Advocate KK Venugopal that it might not be possible to alter the current memorandum of procedure, which was framed pursuant to a decision of the 9 judge Bench in the Second and Third judges case.

Today was the first hearing in the matter after the Court had decided to invite suggestions from the public on how the Collegium system of appointments could be improved.

When the matter was taken up today, the Central government’s law officers informed the court that around 3,500 suggestions were received from different people, including lawyers, NGOs, citizens and retired judges. Attorney General Mukul Rohatgi told the Court that even a sitting Supreme Court judge had given suggestions.

Rohatgi then proceeded to state the crux of the suggestions. He submitted that the main take away from the public’s suggestions was the lack of transparency in the functioning of Collegium.

“The overwhelming response is towards more transparency in the sense that people should get to know about vacancies and there must be some publicly know criteria for selection. Suggestions seem to suggest that transparency can be achieved by inviting applications from interested candidates and through nominations.”

Rohatgi submitted that the filtering that takes place at the entry level is what is most critical and “if the entry level is good, then elevations will, automatically be good”.

He also emphasised on the need to bring judges and lawyers from the district courts to the Bench.

“Lawyers practising in district courts rarely appear in High Courts and hence are not considered for appointment as High Court judges. Many judges who are appointed to High Court have never conducted a criminal trial or know the nuances of Civil Procedure Code, yet sit in judgment over such cases”, he said.

Fali Nariman submitted that besides all these reforms, judges are bound to conduct themselves differently.

“Nowadays judges say, ‘If he can, why can’t I’. I am sorry but you can’t. Judges have to live differently.”

Both Nariman and Rohatgi also argued that the difference in the retirement age of High Court judges and Supreme Court judges should be done away with.

“I see High Court judges kowtowing to Supreme Court judges when I go to conferences, seminars etc. and it is because of this 62 and 65 [age of retirement]. High Court judges go on addressing Supreme Court judges as “your lordships”, said Nariman.

Justice Chelameswar responded to this by stating that the problem was much deeper.

“There are other reasons for it. Even in judgments of High Courts, we find ‘Hon’ble Supreme Court’ being used”, he said.

Rohatgi then submitted that if changes are made, it should be done by way of amending the Memorandum of Procedure and not by way of a judicial decision as the latter will create confusion and ambiguity. Various Senior Advocates also submitted that the current Memorandum of Procedure has been put in place pursuant to 9 judge Bench decisions and a 5 judge Bench might not be able to alter it and the whole exercise will have to be carried out within the framework put in place by the earlier judgments.

Rohatgi also submitted that the Collegium should function in the interim since vacancies have risen to about 40 percent, thereby affecting justice dispensation.

The Court then took a recess and reassembled at 12 noon to convey its decision.

It directed that the Centre should submit a draft Memorandum of Procedure and other issues including whether it will need to be approved by the Chief Justice of India will be considered after the same has been submitted.

The Court also gave the following broad parameters for framing the Memorandum:

Secretariat
An open ended selection process (so that judges and advocates from district courts can be considered)
Different criteria for different High Courts
Method for evaluation of complaints – complaints about integrity of judges to be investigated by the Executive and complaint pertaining to competence to be looked into by the judiciary.
Subsequently, other lawyers were given a chance to put forth their suggestions. Additional Solicitor General Pinky Anand, Senior Advocates including Gopal Subramanium, Arvind Datar, Anil Divan and KK Venugopal made oral submissions.

During the course of these arguments, a number of lawyers once again demanded that they should also be heard. Their grievance was that the court was only hearing those  lawyers nominated by the Committee comprising Fali Nariman, Mukul Rohatgi and BCI Chairman Manan Kumar Mishra.

The court has agreed to consider this request. The hearing will continue tomorrow.