Former Supreme Court Justice Rohinton Nariman recently said that the criticism levelled at the Collegium system of appointing judges to the High Courts and the Supreme Court is not misplaced, and he is all for a better system of appointing judges.
However, returning the power of judicial appointment to the government would severely compromise the independence of the judiciary, he warned.
“Now there are lots of pot shots being thrown at the Collegium system today rightly. If anybody can devise a better system of appointment, I am all for it (but) certainly not reversion to government, no way,” Justice Nariman said.
He also criticised the 103rd Constitutional Amendment, arguing that extending economic reservations to upper castes turns constitutional principles on their head.
He warned that India’s constitutional institutions are currently experiencing a great decline.
“The institutions today that the Constitution has laid down are unfortunately in great decline," Justice Nariman said.
Collegium system
Justice Nariman acknowledged valid criticisms surrounding judicial appointments. However, he firmly cautioned against restoring executive control over the appointment process.
To make his point, he flagged the current state of the Election Commission of India (ECI).
“We have seen what damage government has already done to the Election Commission an extremely important thing which is at the heart of our democracy,” the judge said.
He was referring to the reports by Indian Express that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi objected to these decisions on 14 occasions.
We have seen what damage government has already done to the Election Commission, an extremely important thing which is at the heart of our democracy.Justice Rohinton Nariman
EWS quota
He noted that while income-based quotas allow impoverished members of minority communities to receive state benefits, the policy fundamentally alters the original constitutional intent of affirmative action by allowing upper castes to claim reservation benefits.
“The good side of this economic thing is that persons who are not otherwise included, such as minority communities, for example, get included because they are poor. But the flip side is that the Constitution is turned on its head because Brahmins and Kshatriyas now come in,” the judge said.
Constitutional institutions in ‘great decline'
The former judge also expressed grave concern regarding the erosion of independent democratic pillars across the nation. He stressed that the true strength of the legal framework relies on the integrity of the individuals running it rather than the text alone.
In his concluding remarks, he quoted Dr. BR Ambedkar's warning to highlight this operational decline.
“You can have the best possible constitution, but those who work it, don't work it well. You can have the worst possible constitution, but work well. Today the emphasis is not on the constitution as it stands. It is a great document; it is on how it is worked.”