Renowned jurist and senior Supreme Court lawyer Fali S. Nariman underlines the need to do away with the collegium system, talks about why the SC judgment on convicted lawmakers is correct, and why ministers should have defended the Section 8(4) ordinance after Rahul Gandhi’s outburst in an interview to Maneesh Chhibber.
Should the collegium system be replaced?
There are many things in the [Judicial Appointments Commission] bill I may not agree with. But there is no doubt in my mind that the collegium system is not working well. There has been no sense of accountability, or of transparency. It is difficult to start criticising what judges do in their non-judicial capacity, because this is a new and different role that judges have taken upon themselves of recommending appointments/ promotions. We need to understand that the role of judges in this, when it was brought in, was intended to take the government off the back of the people. This is because the government at that time had openly propagated that it wanted a judiciary “committed” to its ideology. This was dangerous. So the judges of the Supreme Court said, rather than let the executive do what they wanted, let’s have this collegium system instead. This was an experiment and it was supposed to work, and it would have, if only people had paid a little more attention. Unfortunately, judges simply don’t have the time, they are so overworked in court. That is why this system has failed. What if the new system doesn’t work?
I am not saying that the Judicial Appointments Commission will be the panacea for all present ills concerning appointments in the higher judiciary, but we have to make the new system work. We could not make the collegium system work and by we, I do mean the collective we. I am not blaming only the judges. The collegium system created two different classes among judges: the first five (or first three in the beginning) — were the superior judges, and then there were the rest. They didn’t know what was happening within the first three or five. If we had adopted a system that said that a broad consensus of all judges in the SC would agree on who to recommend for an appointment or promotion, I would have no problem with that system.
Do you agree with the assertion that the judiciary is interfering too much in the domain of the executive?
No, I don’t buy this claim at all. I regret to say that this view is being propagated, unfortunately, by some of our judges too — but only after they retire! I don’t share the view that the courts are transgressing their powers. In any case, I have noticed that when governments in office command a large majority of members of legislatures, the courts do not interfere, except when executive or legislative power is abused. When governments are weak, some judges do impose their ex cathedra off-the-cuff opinions on the government. Hence this talk of “judicial interference”.
Many are criticising the Section 8(4) judgment, saying the matter should have been decided by a Constitution Bench. You were the lawyer for the petitioner Lily Thomas. Your views?
I cannot applaud the judgment because I did appear for the winning side. But, in my humble view, it was, and is, a correct judgment in law. Others may disagree and are entitled to say so. In my view, in the SC, no case of importance to the public should be decided by less than three judges. Earlier, we didn’t have many judges. Now that we have more judges, cases that are precedents should be decided by at least a three-judge bench. I think the chief justice
is trying to do something about this, having more and more three-judge benches. And a matter like this could certainly have been decided by a larger bench. But a bench of two judges, when constituted, must decide the cases put up before it, unless there is another bench decision of two judges taking a particular view with which this bench of two disagrees — in which case, it will be referred to a larger bench of three or five judges. But I see nothing wrong with this particular judgment. The reasoning was as follows: disqualification [in case of conviction] is to be prescribed by Parliament by ordinary law. This is expressly provided for in the Constitution (Article 101). But an exception to disqualification cannot be prescribed by ordinary law, because the Constitution does not permit it. Whenever an explanation or exception to “disqualification” is intended, it has to be in the Constitution itself. Section 8(4) is an exception to the sections on disqualification, that is, Sections 8(1) 8(2) and 8(3). But Section 8(4) — which is an exception — is not in the Constitution itself. This is why Section 8(4) was struck down as ultra vires and unconstitutional.
But Parliament, in its constituent capacity, always has the last word. If you want to provide for an exception to disqualification, you have to do it by amending the Constitution. If that is the wish of Parliament as a constituent body, then it would be alright for convicted criminals to remain in the House, not otherwise. But, as of now, the government doesn’t seem to be agreeable to the idea of amending the Constitution to provide for this, obviously because the government of the day does not want to be seen to be supporting persons already convicted and sentenced to imprisonment for two years or more.
Do you think Rahul Gandhi diminished the prestige of the office of prime minister when he trashed the ordinance?
That is a different matter not connected with law. You must ask him. He’s done it. It only shows somebody is frank and a bit hot-headed as well, and doesn’t have the so-called “maturity” of other politicians. This is because he is not a fence-sitter. Of course, his utterance did undermine the position of the prime minister but this was done openly and in an era that looks for plainspeaking, I would not deplore it.
But, should a party leader criticise,
in such strong words, a decision of the cabinet?
I would throw back at you another question — why didn’t the ministers support the prime minister? Ask why senior ministers did not speak out after Rahul Gandhi had spoken. Why didn’t they say that it was on their advice that the PM had acted? The embarrassment to the PM was not caused by Rahul Gandhi as much as by the silence of the other members of the Council of Ministers.
But what about the manner in which the ministers in government reacted after Rahul Gandhi spoke out, dumping both the ordinance and the bill without any defence of the cabinet decision?
That is the sad and unfortunate part. There is no principle left in politics, only loads of hypocrisy. Shakespeare was right: “the fault, dear Brutus, is not in our stars, but in ourselves that we are underlings”.