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For the first time, the Supreme Court on Tuesday conceded that the collegium system of judges appointing judges, which Parliament has replaced with the National Judicial Appointments Commission (NJAC), has not worked well.

During hearing of a bunch of petitions challenging the validity of the NJAC, the Centre and states have slammed the collegium’s non-transparent and non-accountable manner of appointing judges to the Supreme Court and high courts. The attorney general even submitted a list of bad appointments to the five-judge constitution bench hearing the matter.

“One is the (collegium) system itself. The other is the implementation of the system provided procedure. The National Commission to Review Working of the Constitution headed by Justice M N Venkatachaliah had said when the collegium system was devised by the Supreme Court, it was hailed the world over as a unique and good system,” the bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel said.

“So, the (collegium) system is good, but the implementation has gone wrong. That does not mean the system is bad,” the bench said in response to senior advocate T R Andhyarujina’s argument that evolution of the collegium system was neither legally justified nor had worked satisfactorily.

Andhyarujina said the Venkatachaliah Commission had recommended a five-member NJAC to replace the collegium system. The former solicitor general said the present NJAC has six members, including three from the judiciary, to provide a healthy mix of executive, judiciary and legislature for selection of judges.

Countering the petitioner’s argument that involvement of executive in the selection of judges would lead to interference in the independence of judiciary, Andhyarujina said, “Nowhere in the world judges appoint judges. Does it mean no other country has an independent judiciary? Independence of judiciary does not get prejudiced if the executive appoints judges. In fact, our best judges had come during the period when the executive appointed them till 1993. Independence of a judge comes from his character and not from the source of appointment.” Andhyarujina also cited Dr B R Ambedkar’s view on judges’ appointment which was adopted by the Constituent Assembly.

The bench drew the attention of attorney general Mukul Rohatgi the moment Ambedkar was referred to as the top law officer had extensively quoted the architect of the Constitution in his arguments last week. Asked by the bench what Ambedkar would have thought of the collegium system, Rohatgi said, “He would have squirmed as such a system was unthinkable within our constitutional framework.”

Additional solicitor general Tushar Mehta attempted to dispel the court’s reservations on the criteria for selection of two eminent persons as members of NJAC. Appearing for Gujarat, Mehta said, “The eminent members are being selected by a committee comprising the prime minister, the CJI and the leader of opposition, who are top constitutional authorities. If we do not trust the capability of these three to select two eminent persons, then let us all start worrying about the state of democracy rather than judicial independence.”

The court pointed out that the qualification for ’eminent person’ did not specify whether they should be Indians. “Can a foreigner be appointed as eminent person in NJAC that will appoint judges of Supreme Court and high courts?” the bench asked.

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