New look, old style

CHIEF Justice of India T.S. Thakur, whose tenure began on December 3, 2015, will retire on January 3, 2017. A performance appraisal of a CJI in the middle of his tenure has its own risks and may not yield a complete balance sheet of his achievements and setbacks. Yet, a close look at his initiatives and responses so far suggests a remarkable personality who finds himself at the helm of affairs at a crucial juncture at the apex court wanting to achieve whatever that is possible within the limited time available to him.

Many in the Bar ask whether Justice Thakur, who spoke impromptu at the recent conference of Chief Ministers and Chief Justices in New Delhi on April 24, did really break down or merely intended to draw attention to the serious crisis facing the judiciary. But there is no doubt that his was an impassioned plea to the government to increase the strength of judges and clear all pending files relating to judicial appointments.

One of the legacies that Justice Thakur inherited from his predecessor, Justice H.L. Dattu, was the growing tussle between the executive and the judiciary over the power to appoint and transfer judges. During Justice Dattu’s tenure, the Narendra Modi government, fresh after coming to power at the Centre with a landmark electoral verdict in its favour, wanted to clip the powers of the judiciary by setting up the National Judicial Appointments Commission (NJAC) through an amendment of the Constitution. The NJAC sought to end the system of judges appointing themselves through the collegium created by the Supreme Court in 1992. The Supreme Court’s five-judge Constitution Bench, however, struck down the NJAC Act and the 99th Constitution Amendment Act on October 16, 2015, because it violated judicial independence, a basic feature of the Constitution, and revived the collegium system. The Supreme Court collegium comprises the Chief Justice of India and four of his senior-most colleagues.

As the court took more than six months to decide the constitutional validity of the NJAC, during which the collegium was under a self-imposed restraint from meeting and recommending new appointments and transfers, it resulted in vacancies not being filled up in the High Courts and the Supreme Court. That led to an accumulation of cases.

Thus, as on May 1, 2016, there were six vacancies in the Supreme Court and 433 vacancies in the 24 High Courts. The Supreme Court has an approved strength of 31 judges, while the High Courts’ combined approved strength is 1,065 judges. The CJI’s lament stems from the fact that if immediate steps are not taken to fill the vacancies, they are likely to mount further as many of the current judges are likely to retire in the course of the next few months. In the Supreme Court itself, five judges will retire before the end of this year.

The revival of the collegium by the Supreme Court in October last year by itself did not mean the end of the imbroglio between the government and the judiciary. The Constitution Bench, which heard the NJAC case, had set for itself the task of reforming the collegium, and delivered a consequential judgment in the case on December 16, 2015. It asked the government to supplement, in consultation with all the stakeholders, the existing Memorandum of Procedure (MoP)— a series of guidelines for making appointments and transfers to the higher judiciary, which was drafted way back in 1999—in the light of its suggestions for reform.

As on May 6, 2016, the government has not yet completed this exercise of revising the MoP as it sought to see in it an opportunity to indirectly clip the powers of the judiciary, which it could not do directly. Thus, one of the clauses in the draft MoP said, according to reports in the media, that the government could reject a recommendation of the collegium for appointment on the grounds of national interest or national security concerns.

Another clause in the draft MoP says that in case the government rejects a recommendation, the collegium cannot send it again. This is not the case in the current MoP, according to which if a recommendation, after reconsideration, is reiterated by the collegium, then it is binding on the government.

Media reports suggested that Justice Thakur, after consulting the collegium, did not give his consent to these clauses. Another clause in the draft MoP reportedly favours keeping the deliberations of the collegium out of the ambit of the Right to Information Act, which is likely to disappoint information-seekers and proponents of transparency. In the revised guidelines suggested by the Supreme Court’s Constitution Bench to reform the collegium, transparency is one of the key factors.

The other factors that were suggested include the creation of a secretariat, a mechanism to handle complaints, the fixing of eligibility criteria and interaction between the collegium and the appointees. In the absence of transparency over the draft MoP itself, it is not clear whether the government, through the Group of Ministers headed by External Affairs Minister Sushma Swaraj, incorporated these suggestions in it.

The government has reportedly offered to reconsider the draft MoP in the light of the CJI’s concerns and it is likely that its finalisation may take a few more days. This inordinate delay appears to have forced the CJI to abandon his self-imposed restraint not to hold the collegium meetings and recommend new appointments until the new reformed collegium is put in place.

Thus newspapers reported on May 5 that the collegium recommended four new judges to the Supreme Court. They are Chief Justice of the Madhya Pradesh High Court A.M. Khanwilkar, Chief Justice of the Allahabad High Court D.Y. Chandrachud, Chief Justice of the Kerala High Court Ashok Bhushan, and former Additional Solicitor General and senior advocate in the Supreme Court L. Nageswara Rao.

In the light of the Supreme Court’s own standards of transparency, the collegium could have announced these recommendations officially through its website. But it chose to announce its recommendations through selective leaks to the media, which did little credit to its credibility.

The reports also said that the collegium recommended the transfer of Uttarakhand High Court Chief Justice K.M. Joseph as the Chief Justice of the High Court of Andhra Pradesh and Telangana. Justice Joseph was recently in the news for quashing President’s rule in Uttarakhand and passing severe strictures against the Central government for misusing Article 356 of the Constitution for the purpose. Justice Joseph’s judgment was subsequently stayed by the Supreme Court, which is currently hearing the Centre’s appeals against it. It is not clear whether Justice Joseph’s transfer was a consequence of his recent judgment setting aside President’s rule or a result of his own request to the collegium on health grounds. As the collegium’s proceedings continue to be confidential, the truth of his transfer may not be known immediately.

But the collegium’s two recent transfers of judges evoked considerable disappointment in legal circles. The transfer of Justice Rajiv Shakdher from the Delhi High Court to the Madras High Court and that of Justice Abhay Mahadeo Thipsay from the Bombay High Court to the Allahabad High Court were both looked upon as unfair. Both Justices Shakdher and Thipsay are known for their legal acumen and impeccable integrity and they have delivered judgments that went against the Central government in some cases, involving the rights of citizens.