Justice Rohinton Nariman, a former Supreme Court Justice, has proposed a significant reform in the judicial appointment system in India, suggesting the inclusion of retired judges in the Collegium system. This recommendation comes amidst ongoing debates about the effectiveness and transparency of the current system.
In his insightful remarks, Justice Nariman acknowledged the limitations of the existing Collegium system, stating,
“We do have a Collegium system, which is the worst, but then there is nothing better.”
He proposed a forward-looking solution, suggesting,
“I would suggest we have a Collegium of retired judges.”
This idea aims to bring a fresh perspective to the judicial appointment process, leveraging the experience and independence of retired judges.
Elaborating on his proposal, Justice Nariman envisioned a system where these retired judges would be selected by practicing advocates of the Supreme Court and High Courts. He emphasized the role of the legal community in this process, saying,
“The Bar are our judges and we are judged all the time by practicing advocates. It is important to have practicing bars who vote for retired judges who are known for their independence.”
Justice Nariman also reflected on the broader context of judicial independence, drawing inspiration from Alexander Hamilton’s Federalist No. 78. He quoted Hamilton,
“It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power.”
Nariman highlighted the foundational role of an independent judiciary as envisioned by the framers of the Indian Constitution, contrasting it with Hamilton’s view of the judiciary’s relative weakness.
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Discussing the evolution of the judicial appointment system, Justice Nariman pointed to the significant changes brought about by the Second Judges Case, which shifted the primacy of appointing judges from the executive to the Chief Justice of India. He explained,
“The practice was, for a good 40 years that basically the president came out with a name i.e., the government of India. The chief justice said yes or no to it and then if the government felt strongly enough, it would still appoint the person. All this changes with the second judge’s case.”
Further, he touched upon the Third Judges Case, which expanded the Collegium to a five-member body. Nariman likened the current system to Winston Churchill’s famous quote about democracy, saying,
“It is the worst form, except all others.”
Justice Nariman’s suggestions offer a thought-provoking perspective on judicial reforms, emphasizing the need for a more robust and independent system for appointing judges. His proposal for a Collegium comprising retired judges, selected by the practicing legal community, presents a potential pathway to enhancing the integrity and effectiveness of the judicial appointment process in India.
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