Retired Delhi High Court Judge RS Sodhi has made significant contributions to the administration of justice, and he has delivered many landmark judgements throughout his career, reinforcing the common man’s faith in the judiciary. In an interview with Khurram Nizami, Justice Sodhi says the Collegium system is riddled with flaws and merit plays little role in determining the top judiciary.
One of your recent statements, “The Judiciary has hijacked the Constitution,” made national headlines. Kiren Rijiju, the law minister, even tweeted your statement. Why are you criticising the system that has elevated you?
Yes, the system has elevated me. There were no other options, so I qualified it. Your question now was whether my elevation was correct or incorrect. You must make the decision. I am not qualified to assess the process of my elevation.
So, when did you realise the Collegium system was faulty?
It is a gradual decline. This is not my first time saying it. There is a widespread belief that the Collegium is chosen on other criteria, with merit playing only a minor role. Now, public relations has triumphed over merit. Relatives, friends, and referrals are being considered. I would not say there is a decline, but I would say that ignoring merit is lowering the quality of the Collegium’s recommendations.
The general public is curious about how the Collegium operates. According to popular belief, the three or four senior judges sit together and arbitrarily decide who can and cannot be elevated?
Collegium serves in both the Supreme and High Courts. When it comes to High Courts, the Collegium, which consists of the Chief Justice and three other senior judges from the respective court, recommends the name to the Supreme Court for approval. The recommendation of the respective High Court is approved or disapproved by the Supreme Court. This is how the Collegium functions. However, in my opinion, the entire system is opaque and lacks any selection criteria. This is not a competitive exam like the UPSC.
So, what should be done to improve the system’s reliability?
There should be some kind of system, like talent spotting. There should be a talent pool established so that only merit is considered for the appointment of judges. This talent spotting should not be limited to the Supreme Court or High Courts; trial courts should be included as well. Talent may also be there. Even some trial court judges are doing a good job.
Were you known to the Collegium when you were appointed as a judge?
For many years, I practised in the Delhi High Court. So almost all of the judges knew who I was. But I never dabbled in public relations. As a result, my name was forwarded. I never found out why I was preferred, nor did I try to find out.
The same is true for others. So, why are you raising concerns?
It is not something I disagree with. However, the Collegium should understand why the names were shortlisted. Are the names there because of merit or because of recommendations? But my main concern is the Collegium. The Collegium system is not mentioned in the Constitution. This occurred in 1993. It did not exist prior to 1993. So, when was the Constitutional amendment made in this regard?
You mentioned that there is a PR (Personal Relationship) component to the elevation. What exactly is this public relations component?
I’m not saying it’s necessary, but it’s possible that some people are doing it. How to please a judge is also an art. Courtly etiquette? This is the realm of the arts. As a result, public relations is also an art form. Some are blessed, while others are not.
What exactly is the term “Uncle Syndrome” in the legal world? You even used this term in one of your judgement. When I was a judge in the Delhi High Court, I noticed that many judges’ relatives worked in the same court. At that point, I delivered a judgement in which I stated that the Delhi High Court is suffering from Son-Stroke and Uncle-Syndrome. I was of the opinion that something that should not be happening in court was happening, so I voiced my opinion. This caused me a lot of discomfort, but it never stopped me.
Did you ever face any political pressure while serving as a judge?
For a short time, I was appointed as a judge. I had no ambitions beyond that. So there was no mounting pressure on me. Because my family members had nothing to do with the advocacy, mounting pressure on me was futile. As a result, I only performed my duties with zeal and dedication.
Mr Rijiju said the same thing, so are you echoing his point of view?
This is not an isolated opinion. Mr FS Nariman, an illustrious jurist, holds the same opinion. When Mr. Atal Bihari Vajpayee was Prime Minister, the government proposed a bill in which three judges and two government officials would perform the task, but the bill was never passed. The bill is still in place, and the present government can consider it as well. Both are mature bodies. They should sit down and brainstorm a solution. Instead of pointing fingers at each other, they should work together to find a solution.
What is the solution to this conflict? There can never be a tussle between two Constitutional bodies. Both the bodies should sit together and should come with an amicable solution. Scope of improvement is always there. This is the reason why Collegium replaced one system. Later NJAC came, to improve the system further. We have to evolve the best system. Parliament has the right to form the law not the Supreme Court.
The parliament formed the NJAC, but the Supreme Court quashed it.
Yes, the Supreme Court overruled it. However, it also stated that this goes against the fundamental structure of the Constitution. This would not have happened if the judiciary had been consulted in the same way.
What do you consider the judiciary’s most significant accomplishment?
The judicial system is still operational. This is the judiciary’s most significant accomplishment.