Collegium concerns

Justice Jasti Chelameswar’s decision to keep away from the meetings of the Supreme Court’s collegium as a protest against its opaque functioning lends urgency to its reform.

Chief justice of the Supreme Court Justice T.S. Thakur and Justices Anil R. Dave, Jagdish Singh Khehar, Dipak Misra and Jasti Chelameswar at theInternational Conference on Global Environment Issues in New Delhi on March 14, 2015.

ON September 1, Justice Jasti Chelameswar of the Supreme Court became the first sitting judge and member of the Supreme Court’s collegium to question in public the lack of transparency in the functioning of the collegium. He refused to take part in the collegium’s meetings until it evolved a proper procedure to record its minutes. However, he suggested to the Chief Justice of India (CJI), in a three-page letter, that the recommendations of his colleagues be sent to him in writing so that he could record his views and return them to him for onward submission to the government.

While Justice Chelameswar did not make his letter to the CJI public, sources with whom he had shared a copy of the letter told Frontline that it was hard-hitting and that only some parts of it had been made public. Justice Chelameswar’s protest against the collegium’s style of functioning has brought to the fore the resentment within the collegium to the absence of any semblance of transparency and openness in its decision-making process.

The Supreme Court’s collegium comprises the CJI, Justice T.S. Thakur, and four senior-most judges of the Supreme Court, namely, Justice Anil R. Dave, Justice J.S. Khehar, Justice Dipak Misra and Justice Chelameswar.

This five-member collegium is entrusted with the responsibility of selecting and recommending to the government suitable candidates who will be appointed judges of the Supreme Court. The collegium also recommends the transfer of judges and Chief Justices of the High Courts.

A smaller collegium, comprising the CJI and two of his senior-most colleagues in the Supreme Court, has the responsibility of recommending candidates for appointment as judges and Chief Justices of the High Courts after consultations with specific constitutional functionaries mentioned in the Memorandum of Procedure (MoP).

Justice Chelameswar is likely to become the No.3 judge after Justice Khehar succeeds Justice Thakur as the CJI on January 4, 2017. Justice Dave retires on November 18 this year. Justice Chelameswar will then become part of the smaller collegium as well.

Recommendations of the collegium are binding on the government only if they are backed by consensus. If there is any dissent within the collegium, the CJI is expected to communicate such dissenting view, along with the recommendation, to the government. If there is a dissent in the collegium regarding a recommendation, the government can ask the collegium to reconsider it in the light of reservations expressed by the dissenting member. The collegium has to reiterate the recommendation by consensus; only then is it binding on the government.

It is this indirect veto power exercised by a dissenting member of the collegium that makes Justice Chelameswar’s concerns on its style of functioning significant. It is not that Justice Chelameswar, who retires on June 22, 2018, is likely to dissent on each and every recommendation of the collegium. But many observers think that his concerns have brought to light the huge gap that exists between the Supreme Court’s aim in the Second Judges case in 1993 to create the collegium in order to broad-base the government’s consultation with the CJI, and actual practice. Lack of transparency within the collegium has only revived the element of arbitrariness which characterised decision-making when the government had primacy in the matter of appointments before 1993, they say.

Vacancy positions The rumblings within the collegium have come to the fore when both the collegium and the government have to take extra efforts to fill the mounting number of vacancies in the higher judiciary so as to clear the huge backlog of cases.

While there are only three vacancies in the Supreme Court with an approved strength of 31, the number of vacancies in the High Courts as on September 1 is alarming. The combined approved strength in the 24 High Courts is 1,079, which is inclusive of 771 permanent judges and 308 additional judges. Of these, 485 positions are vacant. The number of vacancies includes the posts of 268 permanent judges and 217 additional judges. Additional judges cannot be appointed in a High Court that has vacancies of permanent judges.

Currently, all High Courts, except that of Meghalaya, have vacancies of permanent judges. The Karnataka and Calcutta High Courts have the highest number of vacancies of permanent judges—25 each. The Punjab and Haryana High Court and the Hyderabad High Court have 22 vacancies of permanent judges each. The Allahabad and Bombay High Courts have 16 such vacancies each, while the Madhya Pradesh and Madras High Courts show 19 and 18 vacancies respectively.

This huge number of vacancies is likely to exacerbate the already worrisome backlog of cases. According to the “State of the Indian Judiciary: A Report”, brought out recently by Daksh, a Bengaluru-based non-governmental organisation (NGO), there are currently 17,95,036 pending cases in the High Courts.

Justice Thakur has more than once expressed his anguish over the government’s tendency to sit over the collegium’s recommendations for appointments and transfers of judges in the High Courts. While hearing a public interest litigation petition seeking the court’s intervention to end the delay in judicial appointments on August 12, he asked the Attorney General, Mukul Rohatgi, with exasperation, about the reasons for the government not clearing the collegium’s recommendations for several weeks.

If the government was unlikely to clear the files on its own, the court would pass orders on the judicial side, he warned the Attorney General. The Attorney General has sought more time to get the necessary feedback from the government before the case is listed again on Setember 13.

Justice Thakur claimed in the open court that the collegium had cleared 75 names for High Court judges, but the government has not approved them even after several weeks. The non-transfer of Uttarakhand High Court Chief Justice K.M. Joseph as Chief Justice of the Hyderabad High Court, despite the collegium’s recommendation to transfer him on health grounds, was one such. Justice Joseph headed the High Court bench that quashed the imposition of President’s Rule in Uttarakhand shortly before the collegium recommended his transfer to Hyderabad.

Justice Thakur warned the Centre that the court would consider withdrawing judicial work from two judges, Justice Valmiki Mehta of the Delhi High Court and Justice M.R. Shah of the Gujarat High Court, if their transfers, as recommended by the collegium in February-March this year, were not given effect to. The collegium had recommended Justice Mehta’s transfer to the Hyderabad High Court and Justice Shah’s transfer to the Madhya Pradesh High Court.

The main reason for the delay in the government’s response to the collegium’s recommendations is the ongoing tug-of-war between the two on finalising the revised MoP. The Supreme Court asked the government in December 2015 to prepare the revised MoP in consultation with the CJI-led collegium after striking down the National Judicial Appointments Commission (NJAC) Act last year, which led to the revival of the collegium system of appointments. The Supreme Court asked the government to incorporate the principle of transparency, among other factors, to improve the process of consultation between the government and the collegium.

Delay in finalising MoP

There has been an inordinately long delay in finalising the MoP owing to differences between the government and the collegium on certain clauses that the government wants to include in it. One of them suggests that the government will have the final say in rejecting a name recommended by the collegium on the grounds of national security. Another says that there will be a committee of former judges and eminent persons to prepare a shortlist of candidates to be considered by the collegium. The collegium has apparently rejected both these clauses.

The September 1 meeting of the collegium, which Justice Chelameswar boycotted, was apparently on the revised MoP, whose draft was submitted by the government for clearance in the light of the collegium’s earlier concerns over a previous draft. The meeting was postponed because of Justice Chelameswar’s decision to keep away from it.

The existing MoP provides for some form of transparency in the consultation process by insisting that the opinion of the individual members of the collegium must be expressed in writing before its recommendations are submitted to the government. This implies that the collegium should keep a record of the minutes of its meetings so that individual members of the collegium, before they record their views about the candidates recommended in writing, have some idea about the candidates’ strengths and weaknesses. Right now, a member of the collegium has no idea how and why a candidate’s name was short-listed, which of the members of the collegium suggested the candidate’s name and on what grounds. The lack of this information naturally prevents a member from making a proper appraisal of the candidate’s suitability to become a judge of the High Court or the Supreme Court.

A member of the collegium has similar difficulty in understanding the reasons for transferring a judge from one High Court to another apart from the fact that one or two of the members want it. Transfers of judges, according to the judgments in the Second and Third Judges’ cases, cannot be punitive; yet it is common knowledge that some judges have been transferred without any valid reasons. It is alleged in legal circles that a member of the collegium recommends the transfer of a judge and seeks the endorsement of other members merely because the transferee wants the posting to the desired High Court or that the member-judge wants the transfer for some vindictive reason.

Justice Chelameswar’s concerns Justice Chelameswar’s concerns are over whether the absence of record of the minutes of the collegium’s meetings actually helps the majority members of the collegium to suppress dissent and pave the way for its “unanimous” recommendations in writing to the government. If what he hints at is true, it is disturbing and smacks of complete lack of trust among the members of the collegium. Justice Thakur said the collegium would sort out Justice Chelameswar’s grievance. The sooner the differences within the collegium are sorted out the better for the judiciary.

Justice Chelameswar’s dissent within the collegium is seen in the context of his well-known dissent in the five-judge Constitution Bench’s verdict in the NJAC case last year. While the majority of the judges struck down the NJAC Act as violating the principle of independence of the judiciary, Justice Chelameswar upheld it and was critical of the collegium method of recruitment and transfer of judges.

Later, he went along with his colleagues on the Constitution Bench while delivering the consequential judgment on the collegium in December 2015, hoping that it would pave the way for its reform. The absence of interest among the other members of the collegium to conform with the spirit of that judgment has apparently caused his disappointment. When his gentle persuasion to bring about the desired change in the collegium’s style of functioning failed to yield results, he decided to go public in order to initiate a debate outside the collegium.

Judicial observers compliment Justice Chelameswar for his boldness in seeking the reform of the collegium even while serving on the bench and interacting with his colleagues on a daily basis although they may have been unhappy with him.

One reason often cited against recording the minutes of the collegium meetings is that the grounds for rejecting a candidate should not be made public. As members of the collegium deliberate on the strengths and weaknesses of candidates for appointment to the higher judiciary, they are likely to avoid free and frank discussions if their views are likely to become public later, it is pointed out. If the grounds for rejecting a candidate are made public, it will compromise the credibility and image of the candidate in his current posting, whether at the High Court or in the district court, it is further claimed.

Senior advocate Raju Ramachandran, as if to answer this apprehension, said: “Those who opt for public office must be prepared for certain degree of public scrutiny. Reasons for elevation and non-elevation as a judge, therefore, can be disclosed.”