Collegium system has outlived its purpose: Sidharth Luthra bats for NJAC

The collegium system for appointing judges to High Courts and the Supreme Court has outlived its purpose and senior judges are in a rat race now to be elevated to the Supreme Court due to their limited tenures. .This is affecting the decisions rendered by courts, he lamented.He was delivering the Arun Jaitley Memorial lecture on the topic "Role of the Judiciary in protecting the constitutional foundations of law and policy" at OP Jindal Global Law University"His (Jaitley's) view, and one that I concur with, that the collegium system was needed at a point in our Constitutional history but had outlived its purpose leading to restricted tenures at the High Court and Supreme Court, leading to a race amongst senior judges to be accommodated in the Supreme Court which subconsciously has often impacted decision making," said Luthra.Luthra stated that Jaitley's only regret was that the National Judicial Appointments Commission (NJAC) conceived by the Central government in 2015 for appointment of judges to the higher judiciary, was struck down by the Supreme Court."Jaitley's only regret was that the NJAC which was the reform he whole heartedly supported and which he believed would resurrect and support Judicial independence got struck down in the belief that it was an attempt to curtail Judicial independence," Luthra said..The Senior Advocate opined that the collegium system coupled with the lure of post-retirement jobs has restricted judicial independence instead of securing it."To resurrect, he (Jaitley) believed that judicial oversight seen during coalition regimes was needed more in times when the executives comprise of governments with brute majorities in parliament and legislatures, for it is then that the role of judiciary in protecting rights, questioning policy, administrative decisions and challenging unjust laws was most needed," said Luthra..The senior lawyer further stated that courts are ill-equipped to decide issues concerning policy and should not interfere with policy making unless the policy is either against the Constitution or statute or is driven by mala fides."Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making processes and the Courts are ill-equipped to adjudicate on a policy decision so undertaken," he elaborated.Policy matters, fiscal or otherwise, are best left to the judgement of the executive, he underscored..He appealed to the judiciary to be more "activist" but also said that judges must find a balanced path between passivism and activism. "Too little activism would signify under-enforcement of constitutional notions of good governance, rights and justice. Too much activism results in over-enforcement of these ideals. Judicial activism and judicial restraint are two sides of the same coin," said the senior lawyer."For the deprived and the marginalised people for whom the Judiciary is the last resort of appeal would want the Judiciary to be more activist," added senior advocate Luthra.