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Former Justice Mr. RS Sodhi on Collegium System, Uncle Syndrome, and Political Pressure in Judiciary

When you were practising as a lawyer you contested those cases who gave you the thirst in your career. Those cases hogged you the limelight. Was this intentional.

What is wrong in this. Being an advocate, who does not want in limelight? During the emergency era, I contested cases of smugglers. That gave me fame as well as money.

You practised for more than three decades. In your entire stint, what was the moment, you thought that now everything is fit and fine?

At the time of emergency, lots of cases came to me and my practice gave me everything. I think that was the time which settled me.

One of your recent statement is making headlines. “Judiciary has hijacked the Constitution”. The law minister Mr Kiren Rijiju has even tweeted your statement. But the question is that you are speaking against the system which has elevated you.

Yes the system has elevated me. There was no other system, and I qualified it. Now yours question, was my elevation right or wrong. It has to be decided by you. I am not the right person to evaluate the process of my elevation.

So when you have realised that the collegium system is faulty? Recently or somewhere in the past.

It is a gradual decline. I am not the only person to say this. There is a general perception that the selection of the collegium is on other grounds, where merit holds a little ground. Now the public relation has overruled the merit. Relatives, friends, recommendations are being considered. I would not say that there is a decline but at the same time I would say that sideling the merit is costing the quality of the recommendations of the collegium.

The masses want to know that how the collegium works. The perception is that the three or four senior judges sit together, and they randomly decide who can be elevated and who cannot be.

Collegium functions in Supreme Court and High Courts. Talking of High Courts, the Collegium comprising of Chief Justice and three other senior judges of the respective court recommend the name to the Supreme Court for their nod. The Supreme Court approves and sometimes even disapprove the recommendation of the respective High Court. This is how the collegium works. But in my opinion this entire system is opaque and has no criteria in the selection. This is not an exam like UPSC.

So what should be done to make the system less faulty?

There should be a system at least, like talent spotting. There should be a talent pool so that only merit can be considered for the appointment of the judges. And this talent spotting should not be confined to the Supreme Court or High Courts, trial courts can also be included. Talent can be also there. Even some of the trail courts judges are doing the job well.

When you were elevated as a judge, was you known to the collegium?

I was practicing in Delhi High Court for many years. So almost all the judges were knowing me. But I never indulged myself in the PR. So my name was forwarded. Why I was preferred, I never knew nor did I try to find it out.

Same thing is applied to other too. Then why are you raising questions?

I am not disapproving it. But the collegium should see the reason behind the shortlisting of the names. Are the names there is because of the merit or recommendations. But my point of concern is collegium. Collegium system does not have any mention in constitution. This came in 1993. Before 1993, it never existed. So when the amendment was made in the constitution in this regard?

You said that there is a PR (Personal Relation) element for the elevation. What is this PR element?

I am not saying that this is essential, but there are chances that some are doing this. This is also an art, how to please a judge. Court Craft. These are the arts. So PR is also an art. Some are blessed and some are deprived of it.

What is this commonly used term uncle Syndrome in the judiciary? In one your judgement you have even used this term.

When I was in Delhi High Court as a judge, I have observed that many relatives of Judges used to work in the same court. At that point I pronounced a judgment where I said that Delhi High Court is suffering from Son-Stroke and Uncle-Syndrome. I was of the opinion that something which should not happen in the court was happening, so I gave my opinion. This attracted lot of discomfort but it never deterred me.

When you were serving as a judge, any type of political pressure at any time ever came to you?

I was elevated as a judge for a short time. I never had any ambition beyond that. So there was no point of pressure mounting on me. My family members had nothing to do with the advocacy, so mounting pressure on me had no ground. So I only discharged my duty with full zeal and dedication.

In your opinion, the collegium system is flop and unconstitutional. NJAC is an option. What you have to say about the NJAC?

NJAC was introduced just because the collegium system was not flawless. This cemented the opinion that the collegium system was not flawless and had to be replaced. To fix the situation, efforts are being made. NJAC in one of the effort. But when NJAC was formed, it was found that the participation of judges in NJAC was lesser. Later the Supreme Court struck down NJAC as they had the opinion that it will affect the basic structure of the constitution as well as the independence of the judiciary.

Are you in favour of NJAC and is this flawless?

If the judge’s participation has been corrected, then NJAC may have been accepted. Government may secure their participation there, but the majority share should be given to the judges. Here I would like to add that sitting judges are very busy. They cannot do talent spotting. This is the reason why I am saying that there should be a permanent body also comprising of judges to execute this.

The same was said by the Law Minister Mr Rijiju, so are you echoing his view? Judiciary has also contradicted the view.

I am not the only person saying this. The illustrious jurist Mr FS Nariman is also having the same view. When Mr Atal Bihar Vajpyee was the PM, the government at that time came with a bill where it was proposed that three judges and two from the government side will perform the task, but somehow the bill could not see the light. The bill is still there, the present government can think on it too. Both are the matured body. They should sit together and find a way out. Instead of marking the fault if each other they should find an amicable situation.

Your view has been endorsed by the Law Minister as you have endorsed the views of the law minster. So any reward or political appointment waiting in line.

They are most welcome and I will be thankful for that. But now I am 78 years, nothing can be offered to me nor can I accept. Till day, none have offered me, so what they can offer me now. I said the same thing for the judiciary 8 years back, and nothing happened at that time, so what can happen now.

What is the solution for this tussle?

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.

NJAC was formed by the parliament but Supreme Court struck it down.

Yeah, Supreme Court struck it out. But it also said, that this is against the basic structure of the Constitution. If the same has been done with the consultation of the judiciary, this would have been not happened.

What is the biggest achievement of the judiciary according to you?

Judicairy is still functioning.. This is the biggest achievement of the judiciary.

You have awarded capital punishments. In movies judges breaks the pen after signing on the capital punishment. Have you also done the same?

Never. My pen was very costly. I had only one pen. How could have I done that.

Khurram Nizami
Khurram Nizami

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