‘Nepotism does happen’: SCBA prez pinpoints flaws in judges’ appointment

By Sumit Saxena

New Delhi, Dec 4 (SocialNews.XYZ) Senior advocate and Supreme Court Bar Association (SCBA) President Vikas Singh, in an interview with IANS on the appointment of judges, said he is not saying nepotism is institutionally there, but definitely it does creep in if you go by people whom you know personally and you want to appoint only those people whom you know personally.

He emphasised that the main problem is that currently no system or criteria exist for the appointment of judges and there is just whispering by the three judges in the collegium, who discuss among themselves and side by whoever they know, or whoever appears before them, rather than finding out who is the best in the pool of appointment of judges.

Here are excerpts from the interview:

Q: No institution in a constitutional democracy is perfect, does that mean the collegium enjoys absolute power in the appointment of judges to the Supreme Court and various high courts with minimum or no accountability?

A: This is by an act of judicial determination, so when the NJAC (National Judicial Appointments Commission Act) was brought in, the challenge was made that it was unconstitutional and while deciding the challenge and holding it to be unconstitutional, they said that we know the lawyers and accordingly we are in a better position to decide who should be made a judge. Because, we are interacting with lawyers on a daily basis. Now, on that basis they have taken a call that we will appoint judges, that is the justification.

As long as the law laid down by the Supreme Court says the appointment will be done by the collegium, that is the law of the land. If it is the law of the land, it has to be obeyed. Although, in my personal view the premise they have taken for the purpose of assuming this authority is clearly flawed. Because, there is no system or way by which you may know all the lawyers in the category.

Basically, you are going by people whom you know personally, the collegium judges know personally. They have never done a database; they have never done an elaborate exercise of finding out who are people who would be candidates for judgeship. They have not found which is the age, and the criteria, which should be there for elevation. So, the entire basis is completely flawed.

Q: When you say judges appoint those whom judges know, do you think there is an issue of nepotism in the process?

A: So, when you go by this process of collegium knowing people to appoint, a very important point on this is that Supreme Court judges are not appointing because they do not practice there (Supreme Court lawyers). Now, Supreme Court lawyers according to me are most eligible to be appointed. But since they do not know Supreme Court lawyers, they are not ready to consider them.

So that definitely means there has to be some element of nepotism and favouritism, either your juniors or your caste, or relatives, you are considering. When your relative is being considered, you should abstain from the collegium, which is a basic issue of natural justice. Ultimately, you are only appointing people whom you know, which is completely flawed.

Q: If nepotism grows stronger in the appointment process, wouldn't it rot the system?

A: When you talk about judiciary being the most important pillar of democracy then obviously for that you have to ensure that the best people get appointed in the judiciary. And, the system which is in vogue today, I am not saying that all of them are doing nepotism. I am also not saying that good people are not being appointed, but the best are not being considered. The system does not try to find out who is the best.

Because, you just see the judge's job - he is reading briefs, hearing matters in court, delivering judgments and dictating judgments outside court hours. Where does he get the time to find out which lawyers in the high court could be eligible and should be considered for elevation.

Where is that exercise, there is no secretariat with him to consider...some element of nepotism automatically creeping in. I am not saying nepotism is institutionally there, but definitely it does creep in if you go by people whom you know personally and you want to appoint only those people whom you know personally.

Q: A petition filed in the Supreme Court points out that background checks on 33 apex court judges by the National Lawyers Campaign for Judicial Transparency and Reforms in June this year has revealed that just five judges were first-generation lawyers, all others belonged to families of judges, senior advocates, and so on. How would merit-holder lawyers ever feature on a list of appointments to the judiciary, if these were to continue?

A: The fact that somebody is the son of a lawyer or a judge does not disentitle him to be a judge. For all you know, in our times you know good students would go into law only if they had a lineage in law and very few first-generation lawyers used to come. It is not per say a bar.

But the fault here is that lawyers who argue and they think they are good people to be elevated, they are not the target group to be elevated. They are the one's who are wanting to be designated as seniors. The ones who are filing in chambers and some of them are great integrity-wise and knowledge-wise, they are the real ones who are wanting to become judges.

But nobody sees them, they are not visible. And, that is why the whole process gets completely flawed. That is why, I feel that this system has to evolve into something better to stand the test....

Q: You have often said that merit holder lawyers from across the country should be given a chance and they should be included in the pool of appointment of judges. How would it happen?

A: I have in fact drafted a bill for regulating the collegium system. I have a very foolproof method, for instance I can tell you how it would be done. The collegium can decide that this is the criteria. For instance, for a particular high court they can say that minimum Rs 20 lakh income, age 45-50 years, reported judgments at least 10.

Once you have these three or four basic criteria for the purpose of elevation, then shortlist all the names which come in that category. You can get this database very easily. It should not be a selection; it should be a search committee. Somebody constantly searches for these things, finding out who among lawyers practising in the Supreme Court can be automatically picked up.

Then, you send it to some senior advocate because the senior advocate knows everybody in a particular court. Find out their views on integrity and otherwise, and then once all this information is there, then you consider the best amongst these people. Automatically, you will have the best people getting appointed.

Q: Currently, no system or criteria exist for the appointment of judges?

A: That is the problem. That is my serious grievance with the current system. There is no criteria, there is just whispering by the three judges in the collegium, who discuss among themselves and side by whoever they know, or who ever appears before them, rather than finding out who is the best in the pool.

Q: Would it be appropriate to say that the exclusion of the executive from the appointment process was contrary to the Constitution?

A: Well, according to me that was definitely contrary, as the written Constitution did not say so. The intent of excluding the executive was definitely noble. Because, most of the time, you have seen that our political leaders are involved in very serious, either criminal cases or other cases and to expect them to impartially appoint strong and bold judges would be expecting too much.

So, there has to be a hybrid somewhere and that hybrid according to me has to be somewhere they have a say but not final say, but that hybrid will be possible provided the collegium system has sufficient transparency of getting to the best.

(Sumit Saxena can be contacted at sumit.s@ians.in )

Source: IANS