Harish Salve bats for reform in judicial appointments, cautions against 'judicial overreach'

New Delhi, Nov 1 (PTI) Senior advocate Harish Salve on Saturday said that some of India's finest judges were appointed during a period when the executive held full control over judicial appointments.

It may be time to revisit the current system and correct that "folly," he said.

Delivering the 'Kartavyam' Constitutional Lecture organised by the Campus Law Centre of Delhi University as part of a celebration marking 75 years of the Indian Constitution, Salve reflected on the evolution of the judge appointment process and the rise of the Collegium system.

"In 1991, we fought against complete executive domination, when, in the era of initial coalition politics, some very strange things happened in the kind of judges who were appointed. Before that, some of the finest Indian judges came from a system in which the executive had, in theory, complete freedom to appoint judges," the former solicitor general said.

Several "fiercely independent judges" were appointed by the government of the day, he said.

"But then things started going wrong. We fixed it, and I was part of the legal system which fought to take away this power from the executive, but it was a band-aid. It was not a solution. And in hindsight, I think it is about time we correct the folly we made," the senior advocate said.

Salve said India was the only country which had changed governments with the ballot, and not the bullet and that showed the success of the Constitution and the democracy.

The lawyer, however, there are still challenges which lie ahead, and there is a need for judicial reforms and restoring the independence of the civil service.

He underlined the need for "coequal institutions", like Parliament and the Election Commission, to be respected, and said that he was "distressed" to see the EC officials summoned by the apex court.

"We must always remember that Parliament is a coequal institution. The Election Commission is a coequal institution. In recent times, I was distressed to see the way the Supreme Court summons the Election Commission and talks rudely towards officers," he said.

"Of course, you (Supreme Court) have the power of judicial review if you find something wrong. (But) Do not disrespect them.

"What happens when you call them (co-equal institutions) to account on the basis of a false set of facts presented to you, you let the person who has disrespected a coequal institution say, 'Oh, naughty boy, go away from here. Do not do it again.' Would you have taken the same soft approach if somebody had done the same to you as an institution? You are a high office, and double standards do not go together," Salve said.

He cited the example of the United Kingdom's judicial reforms, where the judges were appointed by the judicial panel selected by the judicial commission.

"And I am always challenged as to, well, if you have this (a judicial appointment commission), who is going to select (members of) the commission? And my answer is, if as 1.4 billion Indians, we can't find seven honest people to appoint judges, shame on us and calling us a democracy," Salve said.

"Why cannot the four or five big functionaries, the speakers of Parliament, the Chief Justice of India, the Prime Minister of India, members of the opposition, senior members of the opposition, constitute a panel. Who will select a panel? Can't we find seven independent Indians out of 1.4 billion, and leave it to them to select judges on merit?" he said.

The process of judicial appointment must be transparent, Salve said.

"How is it a transparent process? Not by saying you must publish what you discuss in that little Collegium of yours and destroy reputations of your own and those of those whom you select and do not select. But in the UK, for example, it is by invitation.

"So, whenever there is a vacancy, you advertise you receive. What you have received is in the public domain. How you select is not, because that then becomes a criticism of why you have not chosen. One over the other. This is one of the biggest challenges to our judiciary," the lawyer, who represented India at the International Court of Justice at the Hague in the Kulbhushan Jadhav case, said.

On the overreach of the judiciary, the senior advocate said, "Judicial nudges are good. Do not let it become a judicial sledgehammer." Salve said he was worried about the judiciary's "control" over the elected executive under the veil of accountability, by entertaining ill-conceived public interest litigations against people in public life, devastating their careers.

"That is not what the Supreme Court was meant for. It was not meant to do a magistrate's job to oversee investigations," he said.

Salve said the 1975 Emergency was the only time in the history of India when the rule of law was "seriously threatened." He said that the day the citizenry developed apathy, it created a crisis, a kind that he said he has been witnessing in the current Europe.

"Europe today is going through a crisis because I have seen the generation of a successful, hard-working post-World War II generation who built Europe into a powerhouse, give way to a generation which was well-fed, well-nurtured and without a fire in their belly. Europe has to reinvent itself. We in India are much ahead in the race," Salve said.

He asked the students to embrace globalisation as it would open opportunities to conquer the world.

"I have faith in Indians. I have faith in your minds. I have the privilege of working in so many jurisdictions, and I dare say, and yes, of course, I am biased in favour of India, but I say India has amongst the finest minds," Salve said. PTI SKM MNR SJK VN VN