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NEW DELHI: The Supreme Court on Thursday agreed to consider a PIL questioning the Collegium system for appointment of judges in the top court and the High Courts and seeking revival of the National Judicial Appointment Commission.
Advocate Mathews J Nedumpara mentioned the plea before a bench of Chief Justice D Y Chandrachud and Justices Hima Kohli and J B Pardiwala.
The court initially asked if the judgement of the Constitution bench in the NJAC case could be reviewed by a writ petition but it agreed to list the matter.
The plea filed by Nedumpara and others asked the court to declare that the Collegium system of appointment of judges has become a synonym for nepotism and favoritism, as it has resulted in the denial of fair opportunity in the selection and appointment of judges of the Supreme Court and High Courts to the petitioners and thousands of others.
The petitioners, while seeking appointment of judges by notifying vacancies, also sought a declaration to revive the NJAC and the Constitution (Ninety-ninth Amendment) Act, 2014, declared unconstitutional by a five-judge bench, as those were will of the people in a matter which fell in exclusive domain of the legislative and executive policy.
"The current scenario where judges appoint themselves and appoint advocates as senior advocates, the bar and bench has become the exclusive province of a few dynasties. The talent elsewhere is not at all recognised," it said.
"The generation of the petitioners are denied equal treatment and fair opportunity and wherever they have raised their voice against discrimination, they are targeted. There can be no change unless the culture of entitlement and privilege is done away with," the plea added.
The Collegium, which the Chief Justice of India presided over will have three judges who are sons/nephews of former judges of the Supreme Court, it pointed out.
"The Supreme Court and High Courts will not be recognised as a democratic institution unless the talented members of the bar are appointed and that will happen only when there is an open, transparent selection process by inviting applications from all eligible," it said.
The plea named CJI, the Collegium judges, SC's Secretary General, the Union government and political parties and some states as parties.
The appointment of judges is purely an executive function to be exercised by the executive in consultation with the Chief Justice. The Constitution (Ninety-ninth Amendment) Act, 2014, and the NJAC Act provided for a mechanism for the appointment of the judges of the High Courts and Supreme Court, including the Chief Justice of India. The Constitution (Ninety-ninth Amendment) Act, 2014, bringing the NJAC into existence had received the assent of both houses of the parliament and was ratified by 21 state legislatures.
"It was the will of we the people on a matter which is in the exclusive province of executive policy, namely, the appointment and transfer of judges. The Constitution (Ninety-ninth Amendment) Act, 2014, and the NJAC Act did not violate the fundamental rights, or for that matter any right of anyone. Nobody had made a grievance at all. Not even a whisper thereof. Yet, a five-judge bench of this Court in Supreme Court Advocates on Record Association (SCAORA) vs Union of India, (2016), held the Constitution (Ninety-ninth Amendment) Act, 2014, and the NJAC Act as unconstitutional, holding it violative of the "basic structure" of the Constitution," the plea said.
