SC Collegium Sucks, Even Judges Agree: It’s Not Possible For CJI To “Sort It Out”

It finally needed a sitting judge and member of the unaccountable Supreme Court collegium to call a spade a spade. A few days ago, Justice J Chelameswar, the fifth senior-most judge in the Supreme Court, dashed off a letter to Chief Justice of India (CJI) TS Thakur that he will not be participating in the collegium’s future meetings due to its lack of transparency and failure to record its proceedings.

An embarrassed CJI told the media that “we will sort it out”, when there is nothing to sort out behind closed doors. Issues of transparency and usurpation of the power to appoint judges are not matters to sort out by the collegium. The collegium is the accused in this misappropriation of power case; it, therefore, has no business “sorting it out” amongst itself, when the government, the legislatures, and the people are an interested party in the outcome.

It is surprising that no one has been willing to say that the emperors of justice had no clothes. The nation thus owes a vote of thanks to Justice Chelameswar, who said not once, but twice, that the collegium is not the best way to select and appoint judges to the upper judiciary. Before he sent his recent letter to the CJI, Justice Chelameswar wrote a lone, but eloquently argued, dissenting note in the National Judicial Appointments Commission (NJAC) case where the majority opinion was to scrap it.

Justice Chelameswar wrote in his dissenting judgment: “Transparency is a vital factor in constitutional governance... Transparency is an aspect of rationality. The need for transparency is more in the case of an appointment process.” He added, for good measure, that the collegium system was not transparent even to its own members: “The records are absolutely beyond the reach of any person, including the judges of this court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or does good for the people of this country.”

He disputed his fellow judges’ adherence to the idea of the “primacy of the judiciary” in the appointment of judges, finding this to be “wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy.” He could have added that in no democracy do judges appoint themselves barring India.

These are strong words, and a stinging rebuke of the self-serving verdict of the five-judge NJAC bench, whose head, Justice JS Khehar, will become the next Chief Justice when the current incumbent hangs up his robes on 3 January, 2017.

In his recent letter to the Chief Justice intimating him of his decision to not attend collegium meetings, Justice Chelameswar is understood to have written to emphasise the transparency point indirectly: he asked the collegium to send him their recommendations in writing so that he could give his views in writing.

This is smart. If Justice Chelameswar has merely recused himself from the collegium on grounds of conscience, it could have continued as if nothing happened. But by remaining a part of the collegium and still demanding transparency, Justice Chelameswar has proved that he was willing to fight for his views and, in the process, done the nation a service.

That many current and past CJIs have a vested interest in continuing with the collegium system is obvious, for who wants his past decisions being questioned? A Times of India story yesterday (4 September) said that three former CJIs admitted that Justice Chelameswar had a point, but none of them attacked the idea of the collegium itself. The collegium sucks, and this needs acceptance by present and past judges of the Supreme Court.

It seems likely that the three former CJIs – RM Lodha, KG Balakrishnan and P Sathasivam – who spoke, may not have an overwhelming interest in ensuring transparency. While ex-CJI Balakrishnan said the collegium must have consensus, he was against disclosure on how the choices were made through a formal system of recording who supported or voted against whom. Then where is the transparency?

Ex-CJI Lodha said Justice Chelameswar “has a point” but then went on to say that “it was not a good sign” that the internal differences with the collegium were being aired in public, even warning that “people” may take advantage of this controversy. It needs no genius to figure out that the “people” Lodha mentioned was the government, which has been locked in a dispute over the Memorandum of Procedure on judicial selections, where the government wants some say.

Ex-CJI Lodha is wrong to presume that the outside world does not need to know what is happening in the collegium, for the basics of transparency involve letting the real “people” know how judges were selected, for what reason, and why.

CJI Thakur, who has been busy using theatrics in public, including an occasional breakdown in public to get the Narendra Modi government to speed up the appointment of judges on the collegium’s terms, has said that “we will sort it out”, the reference being to Justice Chelameswar’s stand. But what is there to sort out barring the termination of the opaque collegium system and giving the executive some say in the appointment of judges?