Collegium 2.0

On October 16, the Supreme Court of India revived the collegium system for appointing judges to the higher judiciary after striking down the 99th Constitutional Amendment Act that created the National Judicial Appointments Commission for this purpose. A constitution bench of five judges with a fractured verdict of 4:1 held the amendment unconstitutional on the ground that it compromised the independence of judiciary, which is a basic structure of the Constitution. Initially, the government appeared tough; Union finance minister Arun Jaitley made an acerbic comment about the “tyranny of the unelected”, betraying the mood of the government. But soon he announced that the judgment would be complied with.

Everybody agrees that the independence of judiciary must remain inviolate, but the court cannot skulk under its cover to negate all attempt at reforming the judiciary, be it the appointment of judges or ensuring their accountability. Institutions collapse if not reformed, and this is the warning Justice J. Chelameswar, the only judge to uphold the amendment in his eloquent dissent, gives as he signs off with Macaulay’s dictum: “Reform that you may preserve.”

The independence of judiciary is, no doubt, a basic feature, but so is the separation of powers as ruled by the Supreme Court itself in Indira Nehru Gandhi vs Shri Raj Narain. The court invoked this doctrine when 39th Constitutional Amendment precluded judicial review of the election of Prime Minister and that of Speaker. The scheme of separation of powers is embedded in the Constitution as a means of checks and balance.

Several former Chief Justices of India, like P.N. Bhagwati, R.S. Pathak, Ranganath Misra, during their deposition before the standing committee of Parliament on the Judges (Inquiry) Bill, 2006, described the judgment in the Second Judges’ case — which injected the concept of collegium in in the name of the independence of judiciary, thus, not only altering the basic structure, but the Constitution itself — as thoroughly against the express provision of the Constitution, and added that the quality of judges had suffered after the introduction of the collegium system. If it is argued that the independence of judiciary would get a body blow if the executive has any say in the appointment of judges, does it mean that all judges appointed before 1993, when the executive alone appointed them, were compromised

In 1950s, even the English judges paid tributes to the independence of the Indian judiciary when in the well-known case of Dharma Teja of Jayanti Shipping Corporation, an argument was adduced for his extradition before the English courts on the grounds that he would not get a fair trial in India. They refused to accept it, hailing the impartiality of the Indian judiciary.

The thrust of the argument of the four judges of the Supreme Court was that the involvement of the law minister and two “eminent persons” will dissipate the independence of judiciary. Justice J.S. Khehar said that the qualifications of the “eminent persons” have not been laid down. Can’t anything be left to the wisdom of the committee comprising the CJI as one of the three members, which was to select them Further, he said that two members can veto the recommendation of the CJI and other two judges and thus block the appointment of any good candidate. Why should it be accepted that judges alone would bat for good judges Justice Kurian Joseph in his concurring judgment has recorded that many deserving candidates were left out by the collegium.

Whosoever appoints the judges, they get total immunity once they are appointed. The spectre of partymen packing the court is also humbug. Justice Chelameswar has quoted one long paragraph from my book Justice, Judocracy and Democracy in India: Boundaries and Breaches to buttress the point that there is no such fear: “ even party men can be fiercely independent after being appointed judges, as has been proved by some judges who were active in politics.”

Justice K.S. Hegde served as a member of Rajya Sabha from 1952 to 1957 and was elevated as a high court judge directly from Rajya Sabha. Though he was a Congress MP, he proved to be so independent that he was superseded in 1973 in the appointment of the CJI by his own party’s government. Justice Tek Chand was also a member of Rajya Sabha before becoming a judge. He was appointed when he was a sitting MP, but he proved to be a fine judge whose report on prohibition is a landmark. Another prominent example is Justice V.R. Krishna Iyer, who was made a judge of the Kerala high court in 1968, though he had not only been an MLA but also a minister in the Namboodiripad government (1957-59) in Kerala. In 1973, Chief Justice S.M. Sikri, was totally opposed to the elevation of Justice Iyer to the apex court on the ground that he had been a politician. It was Chief Justice A.N. Ray who cleared his elevation, and Justice Iyer proved to be a luminous example of what a judge ought to be.

There is also the example of Justice Baharul Islam who served as a member of Rajya Sabha for 10 years before being appointed a high court judge. He was subsequently elevated to the Supreme Court. He absolved Jagannath Mishra, the chief minister of Bihar, in the urban cooperative bank scandal, and immediately, thereafter, resigned to contest the Lok Sabha election as a Congress(I) candidate from Barpeta — he never enjoyed a clean reputation.

So, it is not proper to make any generalisation. People of impeccable rectitude have to be handpicked. By the judges and by politicians. The writer is a senior TV journalist and author