Independence of judiciary sacrosanct, Justice Patnaik tells Odisha law students

Odisha Sun Times Bureau
Bhubaneswar, Aug 23:

Independence and competence in judiciary must be maintained, said Justice Ananga Kumar Patnaik, Former Judge of Supreme Court of India while delivering a lecture on ‘Independence of Judiciary: Collegium vs. National Judiciary Commission’ organized by KIIT School of Law, a constituent of KIIT University in Odisha.

Justice Patnaik said, at the time of framing our Constitution, the Constituent Assembly under the leadership of late Dr. B. R. Ambedker had given importance to independence and competence in both judiciary and legislature and made relevant provisions in the Constitution.

On one hand the Constitution has given power to legislature to make laws, while on the other it has given power to judiciary to uphold its basic structure, he said. Since its adoption in 1950, Parliament has made so many laws, including several amendments to the Constitution. But whenever the legislature has tried to dilute the basic structure of our Constitution, the judiciary has interfered and maintained its basic structure.

Justice Patnaik explained this by citing some examples. From abolition of Zamindari system to emergency, whenever the judiciary felt that the decision of government is against the basic structure of the Constitution, it has interfered, he said.

Constitution of India has given power to President to appoint Chief Justice and Judges of Supreme Court and High Courts in consultation with the Chief Justice and Judges of Supreme Court and High Courts (in case of appointment of High Court Judges) with advice of Council of Ministers headed by the Prime Minister and Chief Minister.

In collegium system, five members – Supreme Court Judges – under the Chairmanship of the Chief Justice of Supreme Court select the names for the post of Supreme Court Judge and Chief Justice and Judge of High Court and recommend the name to the President. The selection of judges by collegium may be wrong in some cases, because the judges are also human beings – they also have their likes and dislikes. But, in general, the judges know other judges’ competence by evaluating their judgments in various cases. So it is not right to say that the entire collegium system was faulty and there was no transparency, he argued.

Now in place of collegium, there will be a judiciary appointment committee. In this regard, a law has already been passed in both Lok Sabha and Rajya Sabha. In this committee, the Prime Minister, Chief Justice of Supreme Court, two Judges of Supreme Court, two eminent persons and Law Minister will be members. In this new law there is provision that, if any two of the members of the committee object one person for judgeship, his name will be discarded.

If the Law Minister can motivate one other member in his favor, together they can reject a particular candidate, Justice Patnaik pointed out. We should hope for the better working of the new law, he added.