Articles
Collegium vs NJAC
Dt: 24/1/23
Collegium vs NJAC
Dr T H Chowdary*
The Supreme Court’s stand that its Collegium is infallible and that the Collegium’s recommendations as to who should be appointed as Judges appears to be self-righteous if not arrogance. Are the five senior most judges superior to all the rest in the Supreme Court in intelligence, integrity, competence and wisdom? Why only the five senior most should constitute the Collegium ? Why not all the judges of the Supreme Court together ? What lesson does the public draw from the conduct of Chief Justice A.N Ray whom Indira Gandhi elevated over several seniors and who in gratitude attempted to get the Golaknath ( 1967) and Keshavananda Bharati (1973) judgements of the Supreme Court over turned, but had to dissolve the Bench he constituted for the purpose thanks to the unassailable and the legendary arguments of Nani Palkhiwala, one of India’s greatest intellectuals and defender of swatantra .
2. The term, “ we the people “ in the Constitution is applicable far more to the Members of Parliament , elected by the hundreds of millions of Indian people than to the five senior most judges among more than a score of others ?
3. To presume that only the five senior most Judges are omniscient to judge about competence of others is a claim to infallibility.
4. In the instant case , three persons recommended are hereditary , just like among political parties. One is a gay with a foreign wife. That the person pronounce himself gay, is no merit; every one is expected to be truthful . Government of India has a rule that its foreign service officers shall have a no objection letter from the GOI to have a foreign spouse ( President Narayanan had a Burmese wife; he was directly inducted as an IFS Officer by Jawaharlal Nehru). If a foreign spouse for an IFS Officer shall be specially noted by government, why should it not be a matter of notice in the case of a judge of the India’s Supreme Court ?
5. Former Judge U C Banerjee, whose son is another person recommended by the Collegium gave a finding as per the wish of the notorious ( jailed in fodder case) Minister Laloo Prasad Yadav in the matter of burning of pilgrims in a railway coach in Godhra in 2002.
6. The following opinion of the illustrious lawyer, Fali S Nariman ( at page 387 in Chapter-16 of his autobiography , “ Before Memory Fades” ) regarding the Collegium affair ought to be given due consideration .
“ I don’t see what is so special about the First Five Judges of the Supreme Court. They are only the first five in seniority of appointment – not-necessarily in superiority of wisdom or competence. I see no reason why all the judges in the highest court should not be consulted when proposal is made for appointment of an High Court judge ( or any eminent advocate) to do a judge of the Supreme Court . I suggest that the closed circuit network of Five Judges (Collegium) should be disbanded”.
(510 words)
END