But my view, based on my limited understanding, is such that unless the Constitution is amended, the parliament cannot dilute the present "Collegium System" by which appointments of Judges of High Court and Supreme Court is made.
Any other simple law made by Parliament in this regard can be struck down as unconstitutional.
Three Reasons
1) The Nine Judges Bench has laid down that "Primacy" of opinion of Chief Justice in appointment of judges is basic feature of Constitution of India. This is a unique Constitution in the world.
2) Since it is a basic feature, reading from various articles, no law can be made by Parliament to destroy any part of Basic Structure.
3) The Primacy of Chief Justice of India is held binding as healthy convention. (Something which can later become part of law). There are elaborate discussion about binding effects of a conventions in 9 Judge Jusgement.
For these three reasons, it will be difficult for Parliament to do away with Collgium system or to replace it.
Then? What else can be done without amending Constitution?
Parliament can pass any law which does not take away "Primacy of Chief Justice and Consulting Judges".
It means, procedures of collegium system, procedure of bringing transparency in records of consultations, referring suggested names to a body of jurists for their remarks and opinions about candidates, etc can be made. The Government can also make laws to make transperant its own part of consultation.
All these can be done without disturbing Nine Judges Judgement and without amending Constitution.
In simple words, Way forward is possible. Way backward is not possible. The Nine Judges Judgement stands as a Rock of Judicial Independance......
Haresh Raichura
24/07/2014
Haresh Raichura
24/07/2014
