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The Hon’ble President
of India,
Rashtrapati Bhavan,
New Delhi
Sir,
SCRAPPING THE COLLEGIUM SYSTEM IN
APPOINTMENT OF JUDGES
Independence, and separation of judiciary from executive functions is
a basic feature of our Constitution. Article 50 goes on, “The State shall take steps to separate the judiciary from
the executive in the public services of the State.” Appointment of judges is an
executive function and the judiciary can’t be permitted to have any say or
interference in the matter. More over the executives are responsible to
Parliament and the Public Representatives are also accountable to public but
the judiciary is accountable to none as per law of the land. Therefore
appointment of judges can’t be left to anybody who is not accountable to
public.
Section16 of General Clauses Act
defines the powers to appoint and dismiss, “Where, by any Central Act or
Regulation, a power to make any appointment is conferred, then, unless a
different intention appears, the authority having for the time being power to
make the appointment shall also have power to suspend or dismiss any person
appointed whether by itself or any other authority in exercise of that power.” Your
good office performs the ritual of appointment of High Court and Supreme Court Judges ,on the
sole basis of recommendations of collegiums, therefore your office enjoys inherent powers
to dismiss or place a judge under suspension.
Though the Hon’ble
judges take oath at the time of assuming office, “I …… I will duly and
faithfully and to the best of my ability, knowledge and judgment perform the
duties of my office without fear or favour, affection or ill-will and that I
will uphold the Constitution and the laws.” But they do repeatedly breach this
oath even in a day, and interpret the law according to their suitability,
convenience, selfishness and comfort therefore the oath is meaningless. A large
number of Judges are tainted, and their misdeeds are in public domain on
various websites. The Supreme Court has said on the one hand, when the matter
involved interests of citizens, “It is so well settled and needs no restatement at
our hands that the legislature is supreme in its own sphere under the
Constitution.” .( CASE NO.: Appeal
(civil) 684 of 2003 Municipal Committee, Patiala RESPONDENT: Model Town
Residents Asson. & Ors D : 01/08/2007) But as soon as the matter of
interests of judges cropped up, the same Court took a turn and pleased to say,
“But the mere fact that Article 309 gives power to the
executive and the legislature to prescribe the service conditions of the judiciary
does not mean that the judiciary should have no say in the matter. (AIR 1993
SUPREME COURT 2493) Therefore the Indian Judiciary does not warrant so much
liberty and autonomy as has been provided for in our Constitution. The foul
method of appointment of Judges in Constitutional Courts is one of the reasons
for this pitiable condition of judiciary. The Singhvi CD episode has exposed
the miserable state of affairs. Justice Kirubakaran of Madras High Court has
also observed, “Already
citizens are frustrated with the justice delivery system and only less than 10%
of the litigants who have disputes are approaching the court,". This
situation denotes the credibility of our judicial system that has been rusted
and worm-eaten. Hardly 10% of the working Judges deserve for the pious posts
but they find themselves helpless to cope up with the wide spread malice in the
judiciary.
The Hon’ble Supreme Court has also
pleased to say in State of Orissa
Versus Mamata Mohanty, “The equality clause enshrined
in Article 16 requires that every such appointment be made by an open
advertisement as to enable all eligible persons to COMPETE ON MERIT.”
The Rajya Sabha has also recommended in FORTY FOURTH REPORT dated 9TH DECEMBER,
2010 that selection of High Court Judges should be made on the basis of written
test. Unfortunately the present process of appointment of HC judges is top
secret, and the process is not put into public domain to facilitate intrusion
by some unwanted people in this pious job. The process of appointment of Judges in USA (IDAHO
STATE) is very
transparent, and aspirant candidates have to pass through a very tough test. Not
only knowledge of law but Integrity and moral courage, Legal ability and
experience, Wisdom, Intelligence, Capacity to be fair-minded and deliberate,
Industriousness and promptness in performing duties, Compatibility of personal
habits and outside activities with judicial office, Capacity to be courteous
and considerate on the bench, Legal research and writing and Administrative skills
of candidates are tested. When there is a vacancy in an office, the Idaho
Judicial Council advertises the existence of the vacancy to all attorneys
licensed to practice law in the state of Idaho
and solicits applications for the position. Notice is also given to the
general public inviting them to comment on the applications as well.
The results of the survey are compiled and are used by the members of the
Judicial Council when they interview the candidates. (http://www.the3rdjudicialdistrict.com/drecruit.htm)
At the conclusion of the
interview process, the Judicial Council submits to the governor the names of
not less than two nor more than four qualified persons.
To quote a Lord Chancellor of England, gentlemen
are required in the judiciary and some knowledge of law is an advantage. But,
in my humble opinion, Indian Judges possess hardly good moral character and
conduct & good knowledge of law. The judgeship without gentleman is redundant.
They have no patience and courage to hear anything which dos not suit them. The
courts in Republic
of India are being
conducted in an autocratic and high handed environment, not freely and fairly
but in league with advocates, police and state functionaries, and turned mercy
courts instead courts of law barring some exceptions. The exceptions are just face
saving exercise.
In UK,
not only judicial appointments are made by a separate body but the
Administrative Head (Lord Chancellor) of Supreme Court is separate from the
Judicial Head (Chief Judge). The Lord Chancellor is under a duty to ensure that
there is an efficient and effective system to support the carrying on of the
business of— (a) the Supreme Court, (b) county courts, and (c) magistrates’ courts,
and that appropriate services are provided for those courts. There is a
separate Inspectorate for judiciary to scan the day to day functions of
judiciary in a regular process. While the Chief Justices in India enjoy both positions of
administrative and judicial heads. It looks like dramatization when the administrative
wing of the court fail to meet a demand, a writ is filed in the same High or
Supreme Court against Chief Justice who also happens to be judicial head. In
the given situation, how can be expected justice from the same person who has
denied justice ago in his administrative capacity. Or alternatively, if he
pleases to dispense with justice in his judicial capacity why had he denied so
in administrative capacity earlier and wasted public resources.
In view of the above your good office is requested
to please stop the collegiums system and pass appropriate law, including
amendment to Constitution, to overhaul the judicial system for bringing it in
tune with international standards in the interest of common Indian. I shall be
glad to know the action taken by your kind honour in the matter.
With regards,
Sincerely yours
Mani Ram Sharma
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