Article 124 of the Constitution provides that the government will appoint judges in consultation with the Chief Justice of India. To make independence of judiciary meaningful, the Supreme Court in the 1990s gave a novel interpretation to Article 124 to mean that selection of judges was the sole responsibility of a collegium of judges headed by the CJI.
Nearly 20 years after the collegium came into being, Justice Ruma Pal, one of the most respected SC judges, spoke from the comforts of retirement in November 2011 to describe the process of appointment of judges to the superior courts as "possibly the best kept secret of this country".
She had said, "Consensus within the collegium is some times resolved through a trade-off, resulting in dubious appointments with disastrous consequences for litigants and credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and lobbying within the system."
Her stinging remarks were hailed by many. Most knew what was happening. But even the most successful lawyers feared to go public with their views. Criticism of the collegium system could prove professionally hazardous, they knew.

Some criticised Justice Pal for speaking out after retirement. They said it would have been better if she had said these things and attempted to improve the system while being a sitting judge, especially when she was part of the collegium.
Justice J Chelameswar did that while being a sitting judge and being part of the collegium. He drew "we knew this" chuckles from many lawyers. Most retired judges and ex-CJIs agreed with him and lauded him for his bold attempt to let some sunlight into the collegium's secret chamber.
But Justice Chelameswar faced criticism from renowned lawyer Fali S Nariman who said, "If a judge in the collegium does not like the way it functions (for lack of transparency or any other), he can quit and then complain about why he quit. People would then understand him better."
Did anyone understand Justice Pal and attempt to take her views forward? Nariman commands respect for what he is. He set high standards for himself and others by quitting as additional solicitor general in protest against imposition of Emergency in 1975.

By this "quit and criticise" advice to Justice Chelameswar, Nariman could not have meant to convey that the collegium process was either transparent or foolproof. If Justice Pal was right, so is Justice Chelameswar. They merely attempted to give a loud message that all is not well within the collegium system, which is accountable to no one. Will this advice be akin to shooting the messenger?
Nariman's integrity, honesty and standing in the bar is impeccable. Yet, a section of lawyers has a grievance that even the great lawyer does not adhere to the golden principle that kith and kin of a judge should not practice in the same court. Should he quit the profession just because his son is an SC judge? No, he should not, because we know in our hearts why Nariman deservingly walks around the court corridors with a "can do no wrong" halo. He must remain in the system and be an example of an exception to the principle that "kith and kin of a judge should not practice in the same court"
Let us take another argument. Selection of representatives by the people to the highest chambers of democracy -Parliament and assemblies - was described by the SC in Association for Democratic Reforms case [2002 (5) SCC 294] as of "utmost importance for governance of the country".
It had said, "For maintaining purity of elections and healthy democracy, voters are required to be educated and well informed about the contesting candidates." Upholding voters' right to know, it directed candidates to reveal their educational and criminal antecedents along with asset details.

To drive home the importance of voters, the SC had quoted Winston Churchill, who had said, "At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper; no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point."
Selection of judges for higher judiciary, the repository of citizens' rights, is equally cardinal for public faith in the judiciary. We can rephrase Churchill's words, "At the bottom of all tributes paid to the judiciary is the little man, walking into a little court, with a little case, and making a little argument to get a little relief. No amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the little man's faith in judiciary ."
Justice Chelameswar's recent views were acknowledged a year ago by the Constitution bench which struck down the NJAC. Instead of him quitting, he let his views be the stepping stone to find ways to strengthen the little man's faith in the system that selects judges and determines the character of judiciary .
We must remember that if free and fair elections are at the heart of parliamentary system of governance, free and fair selection of judges can be said to be at the heart of a credible judiciary.

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