As per the opinion of constitutional expert Seervai the collegium system evolved by a majority judgment of the Supreme Court is null and void being against the content and intent of the Constitution. As per the dissenting opinion of Justice Punchhi (as he then was) it is rewriting the constitution by reading “consent” in place of “consultation” which is impermissible in law. Even in the aforesaid judgment which gives primacy to the opinion of Chief Justice (now collegium) centre has been given a right to return the recommendation at least once on the ground of unsuitability for the reasons stated by the centre. If after due consideration of those reasons the recommendation is reiterated unanimously by the collegium, the appointment has to be made.
The hue and cry raised in a section of press and by number of senior advocates against action of the centre in returning the recommendation of Justice Joseph’s elevation to Supreme Court is wholly unjustified. Even the judgment which confers primacy on the views of the collegium does not lay down that. To question the right of the President to return such recommendations for reconsideration is fraught with serious consequences leading to judicial tyranny. By no process of interpretation the position of the President can be reduced simply to that of a postman to deliver warrants of judicial appointments at the addresses commanded by the collegium.
Regional representation in Supreme Court is a valid and well established ground. Justice Gogoi himself is a beneficiary. He was elevated in High Court in 2001 but inducted in Supreme Court earlier because there was no representation of North East High Courts in Supreme Court. Many judges elevated in other High Courts before (Lokur : 19.02.1999, Kurian : 2000, Sikri : July 1999, Arun Mishra and Abhay Sapre : 25.10.1999) but elevated to Supreme Court afterwards are now junior to Justice Gogoi in the Supreme Court.
The seniority of the candidate recommended is also very important consideration. What is the criterion on the basis of which the Supreme Court collegium found Joseph to be more meritorious and suitable than eleven Chief Justices and thirty pusine judges all senior to him. If for appointment as Chief Justice of India, seniority rule is inviolable, for appointment as a pusine judge to Supreme Court how it can be infringed so blatantly. Silence of all forty-one affected by this proposal is amazing. Justice Bhaskar Bhattacharya and Justice U.L. Bhatt made loud protests against induction of judges junior to them in Supreme Court. Justice Bhatt even declined elevation to Supreme Court when offered after his junior Paripoornan was elevated. It is very easy to attribute motives. Lawyers are alleging political motives against centre. Someone may allege collegium decision to be nepotical. Justice Joseph is son of Justice K.K. Mathew who retired from Supreme Court on 02.01.1976.
The decisions of collegium do not confirm to any set norm or to any principle uniformly applied and indicate adhocism. Frequent and inexplicable exceptions are sufficient to destroy sanctity of any rule. They first take a decision and then evolve a principle to justify it. A retired Chief Justice told in our tea club that if collegium decisions were to be subjected to judicial scrutiny under Article 226, not one of them would stand it. Supreme Court has already insulated itself against such scrutiny. We are right because we are supreme. We shall examine and frown against every arbitrariness except our own.
There is no institutional and objective mechanism to judge the suitability of a candidate and when it is in breach of seniority norm, it is prima-facie arbitrary and subjective. In public opinion the selection process of High Court and Supreme Court Judges has lost credibility altogether. Still IAS, IFS and IPS selections have maintained their credibility because of institutionalized selection process and objective criterions. When a candidate is selected in IAS, IPS and IFS nobody asks him: through which minister or other VIP? Everyone takes it as merit based. As against this, when a lawyer is elevated as a Judge of the High Court, no one in bar believes that it is based on merit. Everyone keeps on asking or guessing about his godfather in collegium. Even worse, when a deserving and upright lawyer is not approved by collegium he suffers stigmatization and scandalisation at the bar by gossip mongers unlike a failure in IAS or IPS selection.
The complaint of the collegium against delay by the government in decision/compliance of its resolutions is also without substance. All constitutional functionaries must act with utmost promptitude. But the Supreme Court collegium which has not been able to finalize the names of nine High Court Chief Justices (which are functioning under Acting Chief Justices) and also to select appropriate personnel to fill in five vacancies in the Supreme Court for more than one year (where the zone of consideration is very-very small) cannot legitimately blame the centre which has to collect several inputs from various agencies before the names are finalized. Again the message is: our delay is right and your delay is culpable. We are supreme.