SC seeks suggestions to make judges' selection, appointment transparent

The Supreme Court on Tuesday invited suggestions for making the working of the collegium for appointment of judges to higher judiciary more transparent and criteria based, but noted the suggested changes could not travel beyond the parameters already spelt out in its 1998 judgment.

While seeking suggestions, a constitution bench comprising Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel asked senior counsel Arvind Dattar and Additional Solicitor General Pinki Anand to collate the suggestions including those on which there is commonality of views.

The suggestions have also been invited on the plea for setting up a permanent secretariat of the apex court collegium including its composition and how and which kind of complaints trying to red flag an appointment should be entertained. However, it was made clear that anonymous complaints would go in to the dustbin.

After collating the various suggestions, Dattar and Anand would submit their report to the apex court which would hear the matter on November 5 (Thursday).

Asking both the sides - the government and the counsel for the petitioners who had opposed NJAC - to work in tandem, Justice Khehar said: "This is an issue which has no sides. Everything is stalled. We don't want to delay. It is most essential for the collegium to function."

His statement came as both lawyers sought some more time to complete the task entrusted to them.

Both of them would also look into the suggestion sent by the eminent people including former judges and senior counsel including activists directly to the apex judges after October 16 judgment holding unconstitutional and void the constitution's 99th amendment paving way for setting up the NJAC and the National Judicial Appointment Act, 2014.

Dattar, who had appeared for the Madras Bar Association, had opposed the NJAC and Additional Solicitor General Anand represents the government.

At the outset of the hearing, Justice Khehar presiding over the bench said that since the pronouncement of the judgment on October 16 holding NJAC unconstitutional and void, they have received a whole lot of suggestions which are so diverse that the task of reconciling them is difficult.

"They are so diverse that you can't imagine.

"Help us in the first step. We have received suggestions from diverse groups, eminent people like retired judges. They are so many and so diverse. We don't know how to proceed in the matter. Please tell us how to go about it without adding, subtracting, deleting (the existing collegium system) and maintaining it. We can't reinvent the wheel," he said.

Addressing the court, Attorney General Mukul Rohatgi said that suggestions by the government were subject to reservation that October 16 verdict holding that the constitution's 99th amendment paving way for setting up the NJAC and the National Judicial Appointment Act, 2014 were "unconstitutional and void" was not correct.

Suggesting different criteria for the appointment of judges to different high courts including that of annual income of a lawyer aspiring to be a judge, he said that high courts could be categorised among those located in metropolitan cities like Delhi, Mumbai, Chennai, Calcutta or Bengaluru, large high courts and the smaller high courts.

At this Justice Lokur observed, judges from Maharashtra and Meghalaya with different levels of earning as lawyers before rising to the bench "may result in an elitist judge" situation.

As Rohatgi said that it was like comparing apple and oranges, Justice Khehar said: "At the end they merge (in the top court). It is federal structure."

Rohatgi and the bench were different planes on the question of entertaining the complaints against a person in the zone of consideration for being a judge.

As the attorney general suggested that the complaints against those in the zone of consideration should be looked into, Justice Khehar said that it would lead to a floodgate being opened.

But Rohatgi countered that "we can't because of the fear of floodgates of complaint sacrifice transparency".