Eclipse and revival

Print edition : November 13, 2015

Judge Jasti Chelameswar, who gave a dissenting judgment. Photo: R.V. Moorthy

During the hearing of the challenges to the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC) Act, the Supreme Court’s Constitution Bench often queried the arguing counsel about the fate of the outgoing collegium in the event of the bench striking down the two Acts as unconstitutional. What would be the legal consequences and would the collegium revive itself in that event, the judges asked the counsel. The Central government clearly said it would lead to a vacuum that will have to be filled by fresh legislation by Parliament as the pre-amendment constitutional provisions stood wiped out after the passage of the 99th Amendment Act and its coming into force. Others disagreed and said that if the bench believed the pre-amendment constitutional provisions would revive, then the 1993 interpretative judgment in the Second Judges case, creating the collegium, would also revive. A number of legal precedents were cited for and against these propositions.

The majority of the judges ultimately decided to explicitly revive the collegium, leaving nothing to chance. Justice Madan Lokur, in a separate judgment, stated that not doing so would be an invitation for the government to make arbitrary appointments to the judiciary.

Justice Jasti Chelameswar’s dissent, on the contrary, cautions his brother judges about the flaws in the collegium system. In paragraph 58 of his judgment, he records that events lend credence to the speculation that the system established by the Second and Third Judges cases in its operational reality is perhaps not the best system for securing an independent and efficient judiciary. Justice Chelameswar then refers to two cases that are part of the Supreme Court’s record. In Shanti Bhushan vs Union of India (2009), there was a dispute regarding the appointment of a permanent judge to the Madras High Court. The allegation was that the procedure indicated in the Second and Third Judges cases was not followed in the appointment of the late Justice Ashok Kumar, who was then the Additional Judge. It was alleged that the then Chief Justice of India (CJI) did not follow the advice of the collegium, and, instead, recommended the extension of Justice Ashok Kumar’s tenure for one year, surrendering his primacy to the government. Using strong words, Justice Chelameswar wrote: “It appears to have been a joint venture in the subversion of the law laid down by the Second and Third Judges cases by both the executive and the judiciary which neither party is willing to acknowledge.” Justice Chelameswar records that paragraph 22 of that judgment left him with an uncomfortable feeling that there was some departure from the law, perhaps under political pressure.

In the second case, the then Chief Justice of the Karnataka High Court, Justice P.D. Dinakaran, was recommended by the CJI for elevation to the Supreme Court, with the concurrence of the collegium. The recommendation did not fructify following serious allegations about his unsuitability for elevation. Justice Chelameswar points out that the recommendation to elevate Justice Dinakaran to the Supreme Court exposed the shallowness (at least for once) of the theory propounded by the Supreme Court in the trilogy of cases commencing from S.P. Gupta and ending with the Third Judges case that the CJI and the collegium were the most appropriate authorities to make an assessment of the suitability of candidates for appointment as judges of constitutional courts in this country.

During the hearing of the NJAC case, a few more instances came to light to demonstrate not only that the theory was shallow, but also that the recommendations of the collegiums have not always been in the best interests of the institution and the nation.

Justice Chelameswar also cites the lead petitioner’s counsel Fali Nariman’s book Before Memory Fades: An Autobiography, in which the author has admitted that he regretted his legal victory in the Second Judges case as counsel for the petitioner. Nariman has also questioned in the book the wisdom of constituting a collegium comprising the CJI and four senior most judges. To quote Nariman: “I don’t see what is so special about the first five judges of the Supreme Court. They are only the first five in seniority of appointment—not necessarily in superiority of wisdom and competence. I see no reason why all the judges in the highest court should not be consulted when a proposal is made for appointment of a High Court judge (or an eminent advocate) to be a judge of the Supreme Court. I would suggest that the closed-circuit network of five judges should be disbanded. They invariably hold their ‘çards’ close to their chest. They ask no one. They consult no one but themselves.”

Justice Chelameswar further admits: “Proceedings of the collegium were absolutely opaque and inaccessible both to public and to history, barring occasional leaks.” Justice Ruma Pal, a former judge of the Supreme Court, has been cited by Justice Chelameswar, as saying: “Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.”

Justice Chelameswar adds that to believe that members of the judiciary alone can bring valuable inputs to the appointment process requires great conceit and disrespect for civil society. According to him, civil society could act as a check on unwholesome trade-offs within the collegium and incestuous accommodations between judicial and executive branches.

According to a study cited by Alok Prasanna Kumar of Vidhi Centre for Legal Policy, New Delhi, the biggest problem with the collegium is not transparency, accountability or objectivity. The real issue is pendency of cases. It would have taken 33 years to fill High Court vacancies. Analysing the data for the last 10 years, available with the Supreme Court in the “Court News” reports at its site, he found that between 2006 and 2014, the High Courts had the highest percentage of unfilled positions in each quarter and year. Since 2007, there have never been fewer than 25 per cent of available High Court judge positions that were vacant; in some quarters, up to a third of High Court judicial seats were unfilled. Between 2006 and 2014, about 76 High Court judges got appointed on average per annum, whereas about 63 High Court judges retire every year. The sanctioned strength of High Court judges increased from 726 to 895 until 2014, and it now stands at 1017, following a decision by the previous government to increase the sanctioned strength. Thus, according to the study, at the current rate, the collegium will take 33 years to fill the current 406 vacancies in the High Courts.

The collegium, according to the study, has never been able to ensure a working strength of more than 652 High Court judges, practically nullifying any effort to increase the bench strength in an effort to reduce case pendency. The study concludes that the large number of pending cases per judge at the High Court level is probably an indication of the sustained backlog that has built up over time as a result of the failure to fill up the vacancies over several years.

The study further points out that the collegium, apart from other things, requires a permanent secretariat and support staff dedicated to the task of providing adequate information to ensure that meetings take place on time and with sufficient preparation. As the Supreme Court’s Constitution Bench meets again on November 3, the question of securing prompt appointments, apart from transparency and fair procedure, must engage its attention.

V. Venkatesan

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