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.
Thus, the nation 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.
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?