New Delhi: A P Shah, former Delhi High
Court Chief Justice who gave a landmark judgement bringing the
office of Chief Justice of India under the ambit of RTI Act,
today attacked the present collegium system of judicial
appointments to higher judiciary.
"The present system of judicial appointments in the
constitutional courts exemplifies the misalignment between the
core values of judicial independence and accountability," he
said during the fifth annual convention of the Central
Justice Shah, who gave a number of significant
judgements including on the disclosure of assets by Supreme Court judges, and decriminalisation of homosexuality, said the process
of judicial appointment provides for no oversight.
"Our current appointments system is out of step with
democratic culture primarily because it lacks transparency,
and provides for no oversight.
"The way in which judges are appointed embody a set of
values about democracy. Choosing judge based on undisclosed
criterion in largely unknown circumstances reflects and
increasing democratic deficit," Shah said.
Speaking on efforts to bring more diversity among the
benches he said the other interesting development was around
growing consensus to promote conscious efforts and bring more
diversity on the bench.
"Judges are not representatives of any group or
constituency. Their duty is to do justice to all according to
law without any fear or favour, affection or ill-will.
"Equally, the judiciary as a whole does not need to be
representative of any group or constituency. However, a
judiciary -- indeed any institution -- that fails to reflect
the make-up of society from which it is drawn will sooner or
later lose confidence of that society," he said.
Justice Shah said an "appropriate balance" between
competing principles must be found in something that is best
suited to our constitutional set-up and is "uniquely Indian"
in that sense.
He was critical of the Judges (Enquiry) Bill, 2006
which allows people to file complaints against sitting judges
which can then be examined by proposed National Judicial
Council. The council can make reference to Parliament for
removal or impose punishment on judges.
"This presents an example of the cure being worse than
the disease. This is clearly impermissible for it is
unconstitutional and also severely undermines the status and
functioning of judiciary. What cannot be done by not less than
100 members of Parliament can now be initiated by only one
person," he said.
Justice Shah said until an alternative constitutional
procedure is devised for removal of "errant judges without
compromising independence, the procedure for complaints must,
at the first instance, be an in-house exercise and cannot be
given to a small and select number of persons".