Need for Amicable Solution and Shunning the Overbearing Approach

I. The Supreme Court must dispassionately appreciate the fact that persons holding the high positions, say the President, Vice President, Prime Minister, CJI and other judges of Supreme Court and Chief Justices and other judges of High Courts should be above board in respect of all matters, whatsoever. From that view of the matter, the elected or selected persons should besuch as to havethe least vulnerability to any weakness or fixation for or against an ideology or a person. This is even more relevant in the cases of judges of higher judiciary who mustroutinely deal witha number of cases involving diverse ideologies, politicians and influential persons. If a person has extreme leftist or rightist leanings or sexual orientation which has no open-arm acceptance in the society, notwithstanding the law, such persons should not be selected for higher judiciary because their mindset would not change overnight andin all probability will find reflection in their judgments.If a lawyer is known for nurturing a strong grudge against the highest executive of the country, can he change himself overnight and insulate his uncontrolled inimical instincts from going berserk whenever he deals with a case having bearing on such person. When the judges do not ignore their criticism and haul up the critic for contempt when he shows recalcitrant attitude, the Hon’ble judges should use the same logic and not recommend a person for higher judiciary who has been a hyper-critic of the highest executive of the country, that toowhen the field of choice is wide open.If a lawyer has the potential to trigger a controversy, such person need not be considered. The Collegium should be sensitive to the ethos of people at large. The Collegiummust exercise extra ordinary diligence in selection of judges as a lawyer once appointed as a Judge of the Constitutional Court cannot be removed from his office in ordinary course even though he might be facing serious charges, except through a marathon and next- to -impossible exercise of impeachment. The procedure of impeachment is highly complex,intricate, and cumbersome. It was for this reasonthat the impeachment proceedings initiated against the judges of SC or High Courts, four times in Indian judicialhistory,failed to reach its logical end every time. There is no likelihood of successful impeachment in future as well because of various factors including polarizationof law makers on religious, regional and caste bases. In the existing scheme of things, practicallythe position is :once a judge,always a judge.The present Collegium system has been drawing flak because the forum is constituted by the judges, for none else, but the judges.Therefore, for better, fairer, transparent selection, the composition of the Collegium should be broadened, both in terms of number and of diversity of expertise of the constituents.
II The Executive and the Judiciary aretwo of the three important organs of the democratic form of Govt. we have chosen for ourselves. Against the backdrop of present controversy, both of themneed to exercise restraint and not undermine the authority of each other by way of open, undesirable outbursts. Having regard to the dignity of the Supreme Court, the persons holding high positions in the Govt. should refrain from making statements which are harmful to the esteemed statusof the highest judicial institution. Similarly, the SC should be extremely discreet while responding to criticism, on matters including appointment of judges. The SC must be conscious of the sensitivity of reports of intelligence agencies and should at no cost make them public, whether it takes cognizance of these reports is altogether a different thing. Such disclosures not onlydemoralize the functionaries of these agencies who are working day and night on ground without any protection but also lower the position of Intelligence Agencies in the estimation of citizenry. Since both are working for furtherance of the public interest, such impulsive actions should be stopped forthwith.We should not forget the fact that these Agencies are ears and eyes of the Govt.
III.It is high time Supreme Court does some sort of soul-searching having regard to the proverb that there cannot be smoke without fire.The selection procedure of judges should not only be fair but it should also appear to be so. It is undeniable thatthe existing Collegium system seems to have some drawbacks and there is an urgent need to fix them. Given the need of the hour, making suo motu changes in the composition of the Collegium will not cause any harm to the basic structure, rather it shouldenhance the prestige of SC manifold.
IV. The Collegium should not feel offended if the recommendation is remitted back for its reconsideration once,twice, or even larger number of times as the Govt.by way of ‘concurrence’ to the recommendation, is a party to the decision-making process.In view of the drawbacks of the collegium system and the enormity of responsibility the Supreme Courtis charged with, the SC should be open to the suggestions advanced by the Govt.
V. No party to the dispute should make it a prestige issue but must deal with it with a forward- looking approach.