New Delhi: The Collegium system of judges appointment is "opaque" which needs "transparency", Supreme Court judge Justice J Chelameswar on Friday said.
He said the assumption that "primacy of the judiciary" in the appointment of judges is a basic feature of Constitution "is empirically flawed."
The lone judge in the five-judge Constitution Bench to uphold the validity of the Constitution (Ninety-ninth Amendment) Act, 2014, paving way for the National Judicial Appintment Commission Act, 2014 (NJAC), said proceedings of the collegium were absolutely "opaque and inaccessible" to the people at large.
"Transparency is a vital factor in constitutional governance. This court in innumerable cases noted that constitutionalism demands rationality in every sphere of state action...
"Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks," Chelameswar said.
The Supreme Court judge said that in the last 20 years, after advent of collegium system, number of recommendations made by the collegia of High Courts were rejected by the collegium of the Supreme Court.
He said there were cases where the apex court collegium "retraced its steps" after rejecting recommendations of a particular name suggested by the High Court collegium giving scope for a great deal of "speculation".
"There is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country.
"For all the above mentioned reasons, I would uphold the Amendment. However, in view of the majority decision, I do not see any useful purpose in examining the constitutionality of the Act," the judge said.
Justice Chelameswar said that primacy of the opinion of
judiciary in the matter of appointments of judges is not the only means for the establishment of an independent and efficient judiciary.
He also concurred with the view of Attorney General Mukul Rohatgi who had argued that the basic feature of the Constitution is not primacy of the opinion of the CJI (Collegium) but lies in "non investiture" of absolute power in the President (Executive) to choose and appoint judges of Constitutional Courts.
"That feature is not abrogated by the Amendment. The Executive may at best only make a proposal through its representative in the NJAC, ie. The Law Minister. Such proposal, if considered unworthy, can still be rejected by the other members of the NJAC," he said.
Chelameshwar also rejected the submission that presence of the law minister in the NJAC undermines independence of judiciary saying it was "untenable".
"The Executive with a vast administrative machinery under its control is capable of making enormous and valuable contribution to the selection process...
"To wholly eliminate the Executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people... To hold that it should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy," the judge said.
On the issue of inclusion of two eminent persons in NJAC, he said,"to believe that members of the judiciary alone could bring valuable inputs to the appointment process requires great conceit and disrespect for the civil society."