The Supreme court on Thursday said there was no bar on the collegium to go ahead with its work to appoint judges for the higher judiciary, which is plagued with large-scale vacancies.
The indication that it was not interfering with the functioning of the collegium system came while the apex court decided to give nine more days to elicit suggestions to improve the functioning of over two-decade-old controversial system of appointment to bring greater transparency in it.
"We want to indicate that we don't want to delay. We don't want to say anything to the collegium. We have not said anything to the collegium and we will not be saying anything. Whatever they want, they can do. If they do not want to proceed, let them not. It is their business. Let us not delay the proceedings," a five-judge Constitution bench headed by Justice J S Khehar said.
Justice Khehar, who is fourth in seniority in the apex court, has kept himself away from the five-member collegium as he was heading the bench which on October 16 had quashed as unconstitutional the National Judicial Appointment Commission Act aimed at the replacing the collegium system of appointing judges by judges to the higher judiciary.
The apex court asked the Attorney General Mukul Rohtagi to issue a public notice inviting representations and suggestions from all quarters of the public and webhost on the website of the Law and Justice Ministry by 1700 hours of November 13.
It also accepted the view of Bar Council of India that the apex lawyers' body be allowed to hold a meeting with all state bar associations and advocates' bodies from across the nation for compilation of various suggestions.
"We appreciate the efforts made by Attorney General for India. He may web-host the compilation and issue a public notice. Likewise, all those who desire to make suggestions may do so directly, on the website of the department of justice, ministry of law & justice, New Delhi.
"Suggestions received by 5 pm on November 13 shall be entertained. No further suggestions will be entertained," the bench, also comprising Justices J Chelameswar, M B Lokur, Kurian Joseph and A K Goel, said while posting the matter for hearing on November 18 and 19.
It also said the hearing would be limited only those counsels who are short-listed and allowed time by a Committee comprising of Attorney General for India, Chairman of Bar Council of India and Senior advocate Fali S Nariman.
The apex court took on record the compilation of over 60 suggestions from various sources filed by Additional Solicitor General Pinky Anand and senior advocate Arvind P Datar who had tabulated suggestions from various associations and lawyers.
Several advocates urged the bench to grant them hearing and sought more time to make suggestions. They also urged for time on behalf of private individuals for the same purpose.
Bar Council of India Chairman Manan Kumar Mishra also sought the court's indulgence in allowing the top body of lawyers to collect representations from all stakeholders and submit their suggestions.
The suggestions submitted to the court were divided to four categories -- transparency, need for eligibility criteria for appointment of judges, establishment of a secretariat for the collegium and evolving a mechanism of complaint redressal.
As certain suggestions could not be classified under any of the four categories, a fifth category -- "miscellaneous" -- was added to the list, Datar told the court.
On the issue of transparency, suggestions were made that "there must be well-defined criteria that should be established by the Supreme Court for appointments to the high courts and to the Supreme Court. The criteria must refer to age, merit, seniority, integrity, income criteria, academic qualification etc.
It said the criteria should be made available on the website of the Supreme Court as well as of high courts while in some suggestions, it was said that these vacancies should be notified six months in advance.
"Applications should be permitted for appointment apart from the names being recommended by judges/collegium. Eligible candidates who are to apply must give specific details.
"In certain cases, it was suggested that there should be a standard questionnaire. It was also suggested that the names of applicants/candidates may be supported by recommendations of two three senior advocates," the suggestion said.
The court, however, reiterated that there will be no drastic change and everything will be within the guidelines of the nine-judge judgment of 1998 that had laid down the elaborate framework for the collegium system.
"Everything will be within the guidelines of the nine-judge judgment. We can't lay down parameters for eligibility criteria. Attempts are on to infuse transparency", the bench said.
As the Bar Council of India said it would like to give detailed suggestions after consulting state bar associations and sought some time for it, the bench said "we will like to have a debate. Bar Council of India is a very important part. They want to make some submissions ...we feel it will be a good idea to allow them."
The compilation also submitted to the court a list of suggestions given by the government which termed it as "special suggestions".
The Centre has suggested a three-step procedure, to be made known publicly, of appointment of judges to the Supreme Court and high cvourts that comprises the recommendation and appointment through a consultative participatory exercise.
"There should be an annual report on appointments which should be publicly available. All procedures of the collegium must be recorded in writing and transferred to the National Archives of India after 30 years for use by scholars.
"A panel of eligible candidates must be prepared in advance and appointment may be made through this panel. Before names are finalised, there should be an informal consultative meeting with the chief minister to avoid delay in the clearance of files. An IB report regarding the candidates must be obtained before the name is sent by the high court collegium to the Supreme Court," the government suggested.
It further recommended that only candidates whose names are cleared should be sent to the Supreme Court. "The Minutes of the collegium meeting must be subject to RTI Act. The candidates must disclose membership of any political party. Rules/guidelines must be prescribed for selection of candidates to ensure transparency," it said.
On the issue of eligibility of candidates, it has been suggested that age limits, legal knowledge, number of cases appeared, income limits etc. must be specified.
"It is suggested that there should be a well-defined criteria on this account and this must be made available on the website. Apart from the candidates recommended by the high court judges, it is suggested that applications should be invited.
"This can be termed as 'expression of interest' of a candidate to become a judge. The nominations can also be made by senior advocates. The zone of consideration should not be merely from relatives of advocates or judges," the compilation of suggestions said.
The zone of consideration should be a panel of all suitable candidates and there must be an interview by the collegium of the shortlisted candidates. "There were also suggestions that the shortlisted candidates for high court should also be interviewed, if necessary, by the Supreme Court collegium.
"Judicial members of Tribunals should be considered for elevation. Advocates practicing in the district courts must also be considered," the compilation said.
The government has also suggested that a proper secretariat must be established in the Supreme Court and each high court to ensure efficient selection of judges.
"There must be a full-time secretariat with a senior officer in-charge and such other staff as may be necessary. The secretariat will collect background information about members of the Bar and district court Judges who are to be appointed to a high court.
"For existing judges to be appointed to the Supreme Court, information will be collected as regards number of judgements delivered, landmark cases, quality of judgments and
other relevant factors. For collecting information of distinguished jurists to the appointment of the Supreme Court -- information regarding number of publications and other factors to assess academic credibility," the suggestion said.
The Centre said the secretariat "should be completely independent of the Executive and will be responsible for preparing and classifying information and preparing an up to date data-base."
"The Union of India has suggested that transfer should be made only on account of administrative exigencies, conflict of interest with relatives practicing at the Bar or at the request of the concerned judge," the government said in its suggestions.
On the issue of transfers, it said every transfer order must record brief reasons as it was necessary to secure confidence of the litigation public in both the transferor and transferee high courts.
"The factors and criteria on the basis of which a judge is transferred from one high court to the other must be disclosed on the website. When a judge is transferred without consent, reason for the transfer must be recorded and put on the website. The criteria and factors for appointing a puisne judge must also be made known to the public from the website.
"A judge of a small high court who has served about 5 years can also be transferred so as to acquire wider experience of judicial working in a larger high court such as Allahabad, Calcutta, Bombay, etc. The Supreme Court collegium may transfer a judge if facts and circumstances have come to its notice that it is expedient in public interest that a particular judge should be transferred," the suggestions said.
Noting the paucity of women lawyers, the compilation has said there was an urgent need to increase the number of women judges as the percentage was very low in most high courts
The special suggestions also recommended strict time-line to be followed for making appointments as this was a major reason for large vacancies. "Use of technology to generate data-bases of lawyers and judges by monitoring their performances or various parameters," it said.
