SCRAP COLLEGIUM SYSTEM IN APPOINTMENT OF JUDGES

Present by : toc news internet channal

The Hon’ble President of India,

Rashtrapati Bhavan,

New Delhi

Sir,

 SCRAPPING THE COLLEGIUM SYSTEM IN APPOINTMENT OF JUDGES

Independence, and separation of judiciary from executive functions is a basic feature of our Constitution. Article 50 goes on, “The State shall take steps to separate the judiciary from the executive in the public services of the State.” Appointment of judges is an executive function and the judiciary can’t be permitted to have any say or interference in the matter. More over the executives are responsible to Parliament and the Public Representatives are also accountable to public but the judiciary is accountable to none as per law of the land. Therefore appointment of judges can’t be left to anybody who is not accountable to public.

Section16 of General Clauses Act defines the powers to appoint and dismiss, “Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.” Your good office performs the ritual of appointment of  High Court and Supreme Court Judges ,on the sole basis of recommendations of collegiums,  therefore your office enjoys inherent powers to dismiss or place a judge under suspension.

Though the Hon’ble judges take oath at the time of assuming office, “I …… I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.” But they do repeatedly breach this oath even in a day, and interpret the law according to their suitability, convenience, selfishness and comfort therefore the oath is meaningless. A large number of Judges are tainted, and their misdeeds are in public domain on various websites. The Supreme Court has said on the one hand, when the matter involved interests of citizens, “It is so well settled and needs no restatement at our hands that the legislature is supreme in its own sphere under the Constitution.” .( CASE NO.: Appeal (civil) 684 of 2003 Municipal Committee, Patiala RESPONDENT: Model Town Residents Asson. & Ors D : 01/08/2007) But as soon as the matter of interests of judges cropped up, the same Court took a turn and pleased to say, “But the mere fact that Article 309 gives power to the executive and the legislature to prescribe the service conditions of the judiciary does not mean that the judiciary should have no say in the matter. (AIR 1993 SUPREME COURT 2493) Therefore the Indian Judiciary does not warrant so much liberty and autonomy as has been provided for in our Constitution. The foul method of appointment of Judges in Constitutional Courts is one of the reasons for this pitiable condition of judiciary. The Singhvi CD episode has exposed the miserable state of affairs. Justice Kirubakaran of Madras High Court has also observed, “Already citizens are frustrated with the justice delivery system and only less than 10% of the litigants who have disputes are approaching the court,". This situation denotes the credibility of our judicial system that has been rusted and worm-eaten. Hardly 10% of the working Judges deserve for the pious posts but they find themselves helpless to cope up with the wide spread malice in the judiciary.

The Hon’ble Supreme Court has also pleased to say in State of Orissa Versus Mamata Mohanty, “The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to COMPETE ON MERIT.” The Rajya Sabha has also recommended in FORTY FOURTH REPORT dated 9TH DECEMBER, 2010 that selection of High Court Judges should be made on the basis of written test. Unfortunately the present process of appointment of HC judges is top secret, and the process is not put into public domain to facilitate intrusion by some unwanted people in this pious job.  The process of appointment of Judges in USA (IDAHO STATE) is very transparent, and aspirant candidates have to pass through a very tough test. Not only knowledge of law but Integrity and moral courage, Legal ability and experience, Wisdom, Intelligence, Capacity to be fair-minded and deliberate, Industriousness and promptness in performing duties, Compatibility of personal habits and outside activities with judicial office, Capacity to be courteous and considerate on the bench, Legal research and writing and Administrative skills of candidates are tested. When there is a vacancy in an office, the Idaho Judicial Council advertises the existence of the vacancy to all attorneys licensed to practice law in the state of Idaho and solicits applications for the position. Notice is also given to the general public inviting them to comment on the applications as well.The results of the survey are compiled and are used by the members of the Judicial Council when they interview the candidates. (http://www.the3rdjudicialdistrict.com/drecruit.htm) At the conclusion of the interview process, the Judicial Council submits to the governor the names of not less than two nor more than four qualified persons.    

To quote a Lord Chancellor of England, gentlemen are required in the judiciary and some knowledge of law is an advantage. But, in my humble opinion, Indian Judges possess hardly good moral character and conduct & good knowledge of law. The judgeship without gentleman is redundant. They have no patience and courage to hear anything which dos not suit them. The courts in Republic of India are being conducted in an autocratic and high handed environment, not freely and fairly but in league with advocates, police and state functionaries, and turned mercy courts instead courts of law barring some exceptions. The exceptions are just face saving exercise.

In UK, not only judicial appointments are made by a separate body but the Administrative Head (Lord Chancellor) of Supreme Court is separate from the Judicial Head (Chief Judge). The Lord Chancellor is under a duty to ensure that there is an efficient and effective system to support the carrying on of the business of— (a) the Supreme Court, (b) county courts, and (c) magistrates’ courts, and that appropriate services are provided for those courts. There is a separate Inspectorate for judiciary to scan the day to day functions of judiciary in a regular process. While the Chief Justices in India enjoy both positions of administrative and judicial heads. It looks like dramatization when the administrative wing of the court fail to meet a demand, a writ is filed in the same High or Supreme Court against Chief Justice who also happens to be judicial head. In the given situation, how can be expected justice from the same person who has denied justice ago in his administrative capacity. Or alternatively, if he pleases to dispense with justice in his judicial capacity why had he denied so in administrative capacity earlier and wasted public resources.

In view of the above your good office is requested to please stop the collegiums system and pass appropriate law, including amendment to Constitution, to overhaul the judicial system for bringing it in tune with international standards in the interest of common Indian. I shall be glad to know the action taken by your kind honour in the matter.

With regards,

Sincerely yours

Mani Ram Sharma                  

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Posted by Unknown, Published at 08.04