Danger: When an institution crosses the limit By H K Dua

H K Dua (Nominated,MP,Rajya Sabha):  Sir, in our Constitutional scheme of things, there is a clear demarcation between various institutions – namely, Parliament, the Judiciary and the Executive.  Whenever any organ  of the State, any one of these three, exceeds its limits, the people sense danger.

In the 1970s, there was a talk of committed judiciary.  And later, of the supersession of judges. An eminent Judge, Justice H R Khanna, resigned on a matter of principle and conscience.  There was turmoil and the people were concerned because the Executive, at that time, was crossing the limits prescribed for it.

In the 1993 Judgement, the judiciary had crossed the limits.  The Brother Judges went on to appoint the Brother Judges.  And, you know, when Brother Judges appoint other Brother Judges, nepotism creeps in, favouritism comes in, and, in a Collegium, there can be instances of bargaining taking  place between one Judge and another Judge, with a Chief Justice taking  a better share.

Justice J S Verma was on the 1993 Bench, which set up the Collegium, a novel institution, which is not prescribed in the Constitution.  He was for setting it up.  Later on, he regretted this decision of the Supreme Court in public.  I think, he appeared before the  Parliamentary Committee and also  expressed this view. Also, in public statements, and in private conversations, he went on saying that a wrong decision was taken by the Bench in 1993, of which he was a Member. His regret was that the Supreme Court approved of a Collegium.

Sir, nowhere in the world the judges appoint themselves.  Always, it is an Executive decision but there are checks on the misuse of the Executive power.  That aspect, I think, is taken care of by the Judicial Appointments  Commission, which is being provided for.

Sir, I won’t take much time.  But, I would say that there has been considerable lobbying with the Collegium members by judges from all over the State High Courts. Those who are aspiring to be Supreme Court Judges, don’t leave any stone unturned to get into the Supreme Court. In the High Courts they retire early and since they want to be in the Supreme Court, they visit the houses of the Collegium members, try to bring influences of all kinds. String pulling is the name of the game in Delhi. That kind of culture which prevails in the judiciary leads to malpractices, should be corrected.

The quality of justice has declined in the country in the process.. I would like to cite two or  three cases. For example, take the Jessica Lal case, or the  Priyadarshini  Mattoo case.  Now, there was miscarriage of justice. Only after public concern and the media noises, ultimately, the superior courts had to intervene, the highest court had to intervene to provide justice.  Also, I can’t understand as to how in the trial courts, and, at even at High Court level, a BMW car became a truck along the way, and, the man who killed six people on Lodhi Road in the capital of India got away very lightly.  This is because the right kind of people are not being appointed in the highest judiciary.

Sir, the Collegium has never laid down the criteria for appointment of judges to say, as to what kind of judges you need in  High Courts or in the Supreme Court. The Delhi High Court has come out with judgements which spell out criteria even  for admission to nursery schools. But the people do not know as to what criteria are there for getting admission into the High Courts or the Supreme Court . (Time-bell). Just half-a-minute more, Sir. That is all.

H K Dua (contd): Sir, I am a little worried when a recognised organ of the state exceeds its limit and when a recognised organ of the state thinks that whatever it says, is always right. I get equally worried about the individuals  who think they are always right, worried about the institutions when they think they are always right.  Now, this aberration of a Collegium.  It was wrong on the part of the Supreme Court to arrogate to itself the power to appoint  judges — is being set right in the Constitution, and that is why I support this Bill.

Thank you very much, Mr Deputy Chairman.


(Transcript of a speech by H K Dua during the debate on the Constitution Amendment Bill to set up National Judicial Appointments Commission in the Rajya Sabha on August 14, 2014.)