Supreme Court junks plea for new mechanism

The Supreme Court on Tuesday declined to entertain a writ petition seeking a new mechanism for the appointment of judges in high courts and Supreme Court outside the control of the judiciary and the executive. A Bench of Justices Arun Mishra and Uday Lalit, after hearing counsel Mathew J Nedumpara in a brief order, said “we cannot amend the constitution. We are dismissing it. We see no merit in this petition. Your ideas may be good or bad, we are not commenting. But your prayers, what all you are asking cannot be done without quashing certain constitutional provisions.” Even as the counsel pleaded for formation of a “public, transparent body” free from judiciary and executive, Justice Mishra told the counsel “Can it be done Can we do it No. We will not comment on the proposed Memorandum being prepared by the Centre in consultation with the collegium.” Justice Mishra further observed “can a proposed MoP be questioned Let it be crystallised ..let it come out then we will see”. When counsel raised his voice,

Justice Mishra bluntly told him “Please lower your voice and come to the relevant portion. Are you addressing the members of the Bar or us. This is not the way to argue.” The petitioner, National Lawyers Campaign for Judicial Transparency and Reforms, sought a direction to set up a new mechanism for the appointment of judges in SC and HC. It said that the collegium system of judges’ appointment has totally failed and it has, instead, meant monopolizing the august office of Judges of the higher judiciary by the kith and kin of sitting and former Judges of the Supreme Court and High Courts, their juniors, celebrated lawyers.

The PIL said that though National Judicial Appointments Commission law has been set aside, that is not the end of the road. It said “the order dated 16.12.2015 passed by Supreme Court has given a road map for improvement of the collegium system of appointment of Judges. It is within that road map to advertise vacancies, invite applications, establish a Secretariat to scrutinize those applications, short-list the same, select the candidates on a tentative basis, notify such selection to the public at large, invite objections and complaints, if any, from the public, etc., all to be done in a transparent manner.”

The Petition said the proposed Memorandum of Procedure, which seeks to provide for a non-statutory, if not secretive, eligibility criteria and procedure, is violative of the Constitution. It wanted a direction to the Union of India to bring into existence such legislative or administrative measures for the creation of a non-governmental/non-departmental public body, nay, a Judicial Appointment Commission which will be independent of both the executive and the judiciary to select Judges for the higher judiciary.

It wanted that judges should be selected by inviting applications from all eligible candidates, invite references from all stakeholders, the Bar Associations, the public at large, and above all to see that “Judges are not only selected in a fair and open way but are seen by the public to have been chosen in the fairest possible way taking nothing into account other than their merit and character.”

The PIL also sought an injunction restraining and prohibiting the Centre from selecting and appointing Judges to the higher judiciary except by way of a non-discriminatory process which will afford equal opportunity to be considered for all eligible lawyers, where there is no room for patronage and influence but which will ensure a fair selection from a diverse and wider pool of candidates.