The Second Judges case which brought in the concept of collegium clearly laid down that the proceedings of the collegium must be recorded and if a senior judge is bypassed, the reasons must be assigned for ignoring their seniority. But it was never followed...
The Second Judges case which brought in the concept of collegium clearly laid down that the proceedings of the collegium must be recorded and if a senior judge is bypassed, the reasons must be assigned for ignoring their seniority. But it was never followed...
It is heartening to hear from the Chief Justice of India, Justice T.S. Thakur, that the government and the judiciary would resolve all differences over the manner of appointing judges. On September 21 last, he said that the memorandum of procedure (MoP), which guides appointments of the higher judiciary would be finalised within two weeks. Never before in recent decades had the apex court and the government witnessed such a face-off with the CJI hauling the government over the coals for not appointing sufficient number of judges and the government not ready to concede total ground to the judiciary in matters of appointment.
Though the Supreme Court invalidated the 99th constitutional amendment, which created the National Judicial Appointments Commission, it, nonetheless, admitted that there are shortcomings in the functioning of the collegium and asked the government to come out with suggestions to improve it and prepare the MoP. That the collegium functions in a most opaque manner, a well-known secret, and Justice Jasti Chelameswar deserves kudos for hitting the nail on the head by making it public and refusing to attend the meeting of the collegium. Though some renowned jurists have berated him with ineptitude for going public, he should be complimented for lifting the veil of secrecy. Since the complaint about the lack of transparency in the functioning of the collegium has come from a sitting judge who happens to be a member of collegiums, it has spawned a national debate.
It is well-known and well-critiqued that the Supreme Court literally usurped the power of appointing judges from the executive as provided in the Constitution (Articles 124 and 217) in the Second Judges case (1993) by way of interpretation. In the First judges case (S.P. Gupta vs Union of India) in 1981, a constitution bench of the apex court decided by majority that among the opinion of three constitutional functionaries (Chief Justice of India, chief justice of the high court and the governor of the state in the appointment of judges of the high court), the opinion of the CJI did not get primacy over the other two, and clearly held that the word “consultation” used in the Constitution did not mean concurrence of the CJI. The court clearly held that since the executive is accountable to the people while the judiciary is not, the former must have primacy. However, the Supreme Court overturned it in the Second Judges case invoking the intention of the constitutional provision: “The question of primacy of the role of the Chief Justice of India in the context of appointment of judges in the Supreme Court and the high courts must be considered to achieve the constitutional purpose of selecting the best available for the composition of the Supreme Court and the high courts, so essential to ensure the independence of the judiciary, and thereby, to preserve democracy. A fortiori any construction of the constitutional provisions which conflicts this constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution and, therefore, an alien concept.”
It is an irony that the true interpretation is being described as “an alien concept”. However, this itself proves that the court was conscious that the constitutional provision did not allow the Supreme Court to have the final say, but in order to usurp power, it injected the “alien concept” of collegium which is extra-constitutional. The court refused to buy the argument that the executive is accountable to the people as “an easily exploded myth, a bubble which vanishes on a mere touch”. To bolster this view, the court argued that if the executive appoints judges, there is no occasion to discuss the merit of any individual appointment in the legislature because of the restrictions imposed by Articles 121 and 211, which forbid any discussion in legislature on the conduct of a judge in the discharge of his duties. So, the court felt that the judges were in the best position to assess the competence of lawyers who are to be appointed. This is humbug and self-contradictory as the Supreme Court collegium, by no way, can assess the suitability of a lawyer practising in a high court. Only the chief justice of the concerned high court can make the correct evaluation. But there are examples galore when the collegium of the Supreme Court has rejected the entire panel of names recommended by the collegium of the high court.
Despite glaring illegalities, the collegium system has been engrafted into the Constitution without any mention of it. It was further institutionalised in the Third Judges case (1998), which was a presidential reference. The court recorded at the outset the submission of the Attorney General that the Union government was not seeking a review of the judgment of the Second Judges case, but seeking clarifications on the nitty-gritty of the collegium system. The Fourth Judges case (2015) set aside the National Judicial Appointments Commission Act betraying utmost disrespect to democracy by questioning the presence of two eminent citizens and the provision that two members of the NJAC could veto any proposal. Though judges had majority in the proposed commission, the power of veto given to two members unnerved judges who thought that any good names proposed by three judges could be vetoed by two non-judges. This is presumptuous and an affront to the very concept of democracy. It is revolting to presume that only judges can protect the Constitution and protect the interest of the country. Such commissions to appoint judges have been established in so many countries of the Commonwealth like the UK, Canada, South Africa, etc., and are working well.
What is important is the security provided to the judge after appointment irrespective of who appoints them. Justice Chelameswar, in his dissent in the Fourth Judges case quoted a long paragraph from my book Justice, Judocracy and democracy in India: Boundaries and Breaches to prove that even people with political background and some sitting MPs were made judges but they proved to be fiercely independent, and Justice K.S. Hegde was superseded by his own party’s government. In fact, the Second Judges case which brought in the concept of collegium clearly laid down that the proceedings of the collegium must be recorded and if a senior judge is bypassed, the reasons must be assigned for ignoring their seniority. But it was never followed and no minutes are maintained. Members of the collegium are not provided even the agenda of the meeting in advance. So, there is hardly any structured and meaningful discussion. If, for example, a member recommends a name, the CJI may counter that s/he is facing these allegations. Now, the member is dumbfounded and is hardly in a position to counter as s/he went without any preparation. Further, the CJI easily wins over members of the collegium as he recommends names for post-retirement assignments. So, Justice Chelameswar deserves our gratitude for showing the courage to catch the bull by the horn. The judiciary which calls for transparency from other organisations must come clean on this count.
The writer is a senior TV journalist and author
