It appears that the confrontation between the Union Government and the judiciary over the appointment of judges, is not going to end soon. Ever since a Bench of the Supreme Court struck down the validity of the National Judicial Appointments Commission, the friction between the two has increased. The Government was incensed that several months of labour, beginning with the previous UPA regime and carried forward by the incumbent NDA, which resulted in Parliament passing the Constitution (99th Amendment) Bill and the establishment of the National Judicial Appointments Commission (NJAC), had gone waste. But it had no option except to swallow the bitter pill and make do with the offer that it could suggest a Memorandum of Procedure to enhance the functioning of the Collegium (that comprised apex court justices) which selected judges. The court had reinstated the Collegium which was sought to be replaced by the NJAC.

Since its landmark verdict in October 2015, the apex court has maintained that the Government was dragging its feet in clearing the list of judges it provided to the Centre. Such was the outrage that a Bench of the court even warned the Government in the second week of August that it would issue directives in case the latter failed to demonstrate alacrity in sending back the list of names the Collegium had given to the Government for its opinion. A three-judge Bench told the Government, “Don’t force us to pass orders to remove this logjam.” Chief Justice of India (CJI) TS Thakur chipped in, “Tell us where the files are. If you have any problems with the names, send it back. The Collegium can consider. You can’t sit over files…”

Add to this, the Chief Justice of India’s recent remark that the Prime Minister should have, in his Independence Day speech, addressed the shortage of judges and its role in delaying the justice delivery system, and the gravity of the situation is not lost on anyone. On an earlier occasion in April, he had got emotional before Prime Minister Modi, pleading with him to address the issue soon. The apex court has been trying out this carrot-and-stick policy, but with little result.

The problem, however, does not rest entirely with the Government. There is discontent within the Collegium system itself over the manner judges are being selected. The issue has now exploded in the open, with a senior justice and part of the five-member Collegium, Justice J Chelameswar, refusing to participate in the Collegium meetings. He told a prominent national English daily that he had written to Chief Justice Thakur that he would not take part in the proceedings because the selection process was opaque. He told the daily, “The system is not at all transparent. No reason, no opinion, is recorded. Just two people decide the names and come back to the meeting and ask for a ‘yes’ or ‘no’. Can a judge of the Supreme Court or High Court be decided in such a manner?”

The senior justice had even more scathing comments to offer. He said that in his experience, “people gang up in the Collegium… The outside world does not know what is happening inside the Collegium. The inside world too does not know much… Are we doing anything good for the country through this selection process?” These are grave allegations indeed, and they rip apart the credibility of a system which the apex court has revived, leading to a conflict with the Government.

Justice Chelameswar’s outburst can be understood in the context of the fact that he had been the sole dissenting voice on the five-member Bench which had invalidated the 99th Amendment to the Constitution and scrapped the NJAC. But this does not take away attention from the serious issues he has raised over the Collegium’s functioning. His remarks should come as a huge embarrassment to the system which the apex court has reinstated, and especially to the Chief Justice of India who has trained his focus almost entirely on the Government for failure to expedite the justice delivery system. It is now for Chief Justice Thakur to convince the senior judge to reconsider his decision to boycott the Collegium’s proceedings. He can do so by addressing Justice Chelameswar’s concerns. The other option for the Chief Justice of India is to bring in another judge to replace Justice Chelameswar in the Collegium.

Meanwhile, there is speculation over what exactly triggered the senior judge’s ire. Was it the clearance of a particular name or a set of names by the Collegium on which Justice Chelameswar had reservations? Or was his anger the cumulative impact of a string of incidents that has rankled him over the months? We will not know unless he gets specific, but he has successfully flagged the larger question of transparency. This is ironical because the apex court has often pulled up authorities for opacity in decision-making. Now that it has some answering to do, it will be interesting to watch its response.

Incidentally, another judge who was part of the Bench which scrapped the NJAC, too had in the recent past, questioned the functioning of the Collegium system. Justice Kurian Joseph was, unlike Justice Chelameswar, part of the majority verdict which quashed the NJAC. He had remarked that the appointment of judges to the High Court and the apex court “is an integral part of the concept of independence of judiciary”. Yet, he did not lose the opportunity to draw attention to the shortcomings in the Collegium’s functioning. He stated, “The Collegium system needs to be improved, requiring a glasnost and a perestroika.” This is precisely what Justice Chelameswar has demanded. Similarly, yet another judge on that same Bench, Justice Madan B Lokur, who too was part of the majority verdict, had voiced concerns and suggested that checks and balances needed to be in place for the Collegium to function correctly.

Besides, there have been several jurists who have recorded their doubts over the wisdom in giving primacy to judges in the selection of one of their own. In the course of arguments being heard for and against the NJAC in mid-June 2015, the Supreme Court Bar Association, which knows a thing or two about judicial appointments, blasted the Collegium system for its “give-and-take” culture. Its counsel Dushyant Dave said the two-decades of the Collegium system had not improved the functioning of the justice delivery system — “Letters sent to Chief Justices are not replied to”, he claimed; “Young lawyers get humiliated in courts everyday”, he alleged; “While politicians and actors get instant relief from courts, the common man struggles for years for justice”, he lamented. The underlying sentiment here was that the selection process was picking wrong people to become judges. This was because the Collegium system was inherently flawed.

It were those concerns that prompted a five-judge Bench of the Supreme Court to issue guidelines to improve the Collegium system. Among the initiatives taken was to ask the Government to finalise the Memorandum of Procedure in consultation with the Chief Justice of India. Elaborating on the MoP, the Bench said, “The MoP may indicate the eligibility criteria…for appointment of judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time”.

The Bench also suggested two measures as part of the MoP: First, the eligibility criteria must be put on the Government website to make the process transparent; and second, to record proceedings — “minuting the discussions including recording the dissenting opinion of the judges in the collegium…” If we return for a moment to Justice Chelameswar’s grievance, we will find that he has faulted the Collegium system on exactly the ground of opacity and lack of a democratic spirit in the system’s functioning. If the apex court is wanting a MoP to address such concerns, what has prevented it from implementing the spirit of the same in the Collegium’s internal functioning?

Meanwhile, the MoP itself has become a bone of contention between the Government and the judiciary. According to media reports, the Government is determined to include a screening mechanism as part of the MoP, to vet names that are seen to have been forwarded by the Collegium but questioned on various benchmarks. The Government also wants a ‘national security’ clause as part of the MoP. The apex court, from available reports, is not keen on these suggestions, since it believes they are meant to stifle the primacy of the Collegium in appointments. However, the Government has with a straight face claimed that the suggestions fit in with the Supreme Court’s desire to enhance accountability and transparency in the selection of judges. The back-and-forth is holding up the finalisation of the MoP.

Meanwhile, since the taste of the pudding lies in its eating, let’s see how the Collegium responds to the list the Government has recently sent to it, with certain remarks. This pertains to the appointment of 44 judges to the Allahabad High Court. Earlier, the Government had held back the names on this list because it wanted to vet them. This was pursuance to complaints it had received from certain quarters that some of the candidates were relatives of sitting or former judges. The Government has forwarded the names to the Supreme Court Collegium along with Intelligence Bureau reports against each recommendation the Collegium had made.

While there is nothing wrong per se with relatives of sitting or former judges, or even lawyers, being recommended, the Government was concerned about possible impropriety since the names had come to the apex court through the Allahabad High Court panel. There have been concerns that the local panels often get influenced by pulls and pressures. In 2010, as a judge of the Supreme Court, Markandey Katju had slammed the Allahabad High Court for lack of integrity and for nepotism — a stand which he has maintained since retirement. Donning his favourite literally hat, he quoted Shakespeare’s Hamlet: “Something is rotten in the state of Denmark”, and rephrased it thus: “Something in rotten in the Allahabad High Court.” While the retired learned justice has a reputation of being hyperbolic, the essence of his remark cannot be brushed aside as being inconsequential.

The Collegium system has a history. It dates back to the 1990s and not to the Constitution of India, which has no mention of it. At the core of the Collegium is the belief that political primacy in the appointment of judges to the High Courts and the Supreme Court is dangerous. Brazen interference by Governments in judicial appointments was evident most significantly in the 1970s in the run-up to the Emergency and during it as well. Instances of non-pliant judges being superseded and flexible ones elevated in that period have been recorded enough to need further mention. While Article 124(2) of the Constitution mandates that the Chief Justice of India shall “always be consulted” in the appointment of judges to the apex court and the High Courts, it did not offer the final word to the Chief Justice of India. This aspect was exploited to the hilt.

In the SP Gupta versus Union of India case of 1981 — also called the First Judges Case — the apex court held by majority verdict that the concept of primacy of the Chief Justice of India was not to be found in the Constitution. The court also said that consultation as mentioned in Article 124(2) did not amount to ‘concurrence’. In other words, the Chief Justice may be consulted, but the Government was not bound by his disagreement. For 12 years thereafter, the executive exercised its primacy over judicial appointments with legal cover.

In October 1993, a nine-judge bench of the court overturned the verdict on primacy. In the Supreme Court Advocates-on-Record versus Union of India case, the Bench ruled that “justiciability” and “primacy” required that the Chief Justice of India be given the “primal” role in such appointments. Writing the majority judgement, Justice JS Verma contended that “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter… Should the executive have an equal role and in divergence of many a proposal, germs of indiscipline would grow in the judiciary”. Among other aspects, the Bench pointed to Article 50 of Directive Principles of State Policy, which says, “The state shall take steps to separate the judiciary from the executive in the public services of the state.” This came to be called as the Second Judges Case.

But the issue continued to simmer, because the judgement was not unanimous. One judge, Justice AM Ahmadi dissented, while another, MM Punchhi, said that the CJI must not limit himself to consulting just two judges (as mentioned the ruling) but more — or even none at all. The ensuing confusion gripped judicial functioning, with CJIs at times supposedly taking unilateral decisions without conferring with even two judges. Eventually, the then President of India, KR Narayanan had to step in and make a presidential reference to the Chief Justice of India in 1998, on the interpretation of the term ‘consultation’, in Articles 124, 217 and 222 (dealing with the transfer of High Court judges). This became the Third Judges Case, completing the trilogy on the primacy of the CJI in the appointment of judges to the apex court and the High Courts.

In response, the Supreme Court laid down nine guidelines for appointments and transfers. Justice SP Bharucha used the occasion to not just validate but also reinforce the concept of primacy of the CJI over the executive. The Collegium system had come to stay. The challenge to it came more than a decade-and-half later in the form of the 99th amendment to the Constitution and the NJAC. For now, this challenge has been met.

All said and done, the executive-judiciary tussle has to end. It’s good for the image of neither of the parties. And it’s certainly having a deleterious impact on the people who approach the courts as a last measure for redressal of their grievances at the earliest. It’s unfortunate that they should become the casualty in the one-upmanship game being played by individuals and institutions. The Government and the judiciary must work together to iron out differences, get the MoP going and end the distrust that exists. Hopefully, the Union Ministry of Law and Justice will take the lead.

(The writer is a senior political commentator and public affairs analyst)

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Published Date: 6^th September 2016 Image Source: http://www.lawintellectindia.com
(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Vivekananda International Foundation)