Collegium system and NJAC have serious flaws: PP Rao

Frank Rausan Pereira

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The Central Government and the Supreme Court have been at loggerheads over the appointment and transfer of judges to the higher judiciary. The National Judicial Appointments Commission (NJAC) which replaces the collegium system for the appointment of judges has come under a lot of flak from the apex court. Rajya Sabha Television spoke to Constitutional Law expert PP Rao to find out what his thoughts were on the issue and many other pressing matters.

Here are excerpts from the interview:

What is the problem with the collegium system?
I was one of those who fought for the collegium system with the hopes that the selections would be very objective and absolutely free from any taint. But experience belied both expectations. Those of us who fought for this in the court and ultimately prevailed on the court to accept our view were disillusioned with the way the collegium was functioning. We were not getting the best judges. Selections were not objective all the time. There was some kind of give-and-take among the members of the collegium and therefore there were some shady characters who were recommended. These disturbing tendencies had developed in the collegium system. Therefore there was a dire need for a different system.

What is better the collegium system or the NJAC?
The collegium system was not transparent and there was no accountability. Those were the two main defects. There was scope for nepotism and favouritism in the collegium. The present system (NJAC) is different from what the National Commission had recommended. There is a provision for two eminent persons in the NJAC and it is a 6-member body, as opposed to the 5 members recommended by the NC. There is no definition of ‘what is eminence’, no clarification about what it means. We know whom the government considers as eminent. Look at the nominations in the Rajya Sabha from the beginning. You will find few names where it is difficult to agree that they are very eminent people. Eminence is a very elusive concept. Also, there is a veto power given to two members in the NJAC Act. If the Law Minister and another eminent person join hands, then no appointment can be made. Then bargaining will start. Earlier, bargaining was among the judges, now the bargaining will be between the executive and the judiciary. I personally feel this is very harmful to the system and the independence of judiciary. We need to do away with both the systems and come up with something better.

Is the divide between the Judiciary and Executive at its widest at the moment?
In so far as the issue of appointments of judges is concerned, it is. There are deep differences between the two.

What is your take on the Centre versus Delhi Government row?
Both, the State and Centre must realize that Delhi is not like any other Union Territory. Delhi has a Legislative Assembly created by Parliament and a popular government installed. In a democracy you must allow the will of the people to prevail as far as possible. Both the State and the Central Governments do not seem like they are in a mood to reconcile. There are two options now, the first being – consult the Supreme Court Bar and come up with an amicable solution, and the second, approach the Supreme Court.

Another bit of news that made headlines recently was the controversy involving the Vice President on International Yoga Day. How should the situation have been handled?
Firstly, high offices should never be drawn into controversies like this; in fact it (Vice President’s Office) is the second highest office in the country. This is a controversy that should have been avoided. If protocol was a difficulty, then what was the difficulty in asking the President to associate the VP and ask him to join the Rashtrapati Bhavan event? The Vice President never said that he will not associate himself with Yoga Day.

There are over 2.4 cr cases pending in courts across the country. How do we address this problem?
Pendency of cases is a very important and a serious issue. If we provide a clean and honest government, then people don’t have to rush to courts. The biggest litigant in the country today is the government. Since people don’t get justice from the government, they turn to the courts. A clean government will ensure that people won’t have to go to courts. But as far as the pending cases are concerned we need a different approach. A shift system should be started in every court. We should have a second shift in courts, and in the second shift have recently retired judges and judicial officers man it. Media is working in shifts, some educational institutions are working in shifts; so what is the difficulty in the judiciary working in shifts? That is one way of ensuring that we clear pending cases.

You can watch the entire interview with the eminent jurist Mr. PP Rao by clicking on the following link.