Calling for reforms in judicial appointments in the country, senior advocate Harish Salve on Saturday said that some of India's finest judges were appointed during a period when the executive held full control over judicial appointments. It may be time to revisit the current system and correct that "folly," he said.
Delivering the 'Kartavyam' Constitutional Lecture organised by the Campus Law Centre of Delhi University as part of a celebration marking 75 years of the Indian Constitution, Salve reflected on the evolution of the judge appointment process and the rise of the Collegium system."In 1991, we fought against complete executive domination, when, in the era of initial coalition politics, some very strange things happened in the kind of judges who were appointed. Before that, some of the finest Indian judges came from a system in which the executive had, in theory, complete freedom to appoint judges," the former solicitor general said.
Several "fiercely independent judges" were appointed by the government of the day, he said."But then things started going wrong. We fixed it, and I was part of the legal system which fought to take away this power from the executive, but it was a band-aid. It was not a solution. And in hindsight, I think it is about time we correct the folly we made," the senior advocate said.Salve said India was the only country which had changed governments with the ballot, and not the bullet and that showed the success of the Constitution and the democracy.The lawyer, however, there are still challenges which lie ahead, and there is a need for judicial reforms and restoring the independence of the civil service.
He underlined the need for "coequal institutions", like Parliament and the Election Commission, to be respected, and said that he was "distressed" to see the EC officials summoned by the apex court.He cited the example of the United Kingdom's judicial reforms, where the judges were appointed by the judicial panel selected by the judicial commission.The process of judicial appointment must be transparent, Salve said."How is it a transparent process? Not by saying you must publish what you discuss in that little Collegium of yours and destroy reputations of your own and those of those whom you select and do not select. But in the UK, for example, it is by invitation.
On the overreach of the judiciary, the senior advocate said, "Judicial nudges are good. Do not let it become a judicial sledgehammer." Salve said he was worried about the judiciary's "control" over the elected executive under the veil of accountability, by entertaining ill-conceived public interest litigations against people in public life, devastating their careers."That is not what the Supreme Court was meant for. It was not meant to do a magistrate's job to oversee investigations," he said.
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