Presenting his paper at the seminar on judicial appointments hosted by the Judicial Appointments Commission [UK] in London in 2010 Professor Jeffrey Jowell, Director Birmingham Centre for Rule of Law said: “In the UK, prior to the Constitutional Reform Act 2005, judges were appointed by a politician, the Lord Chancellor, after ‘secret soundings’ had taken place within the legal community, without any opportunity for wider assessment of a candidate’s record or predilections” In contrast, judicial appointments in India were never made by anyone’s authority. A mutually restrained executive and judiciary together harmoniously handled judicial appointments till early 1970s.
This mutuality was drastically altered in 1970s. What started off as the demand for a judiciary committed to the socialist character of the executive drifted into superseding Supreme Court judges in 1973 and the drift later culminated in constitutional dictatorship in 1975. Subsequently, in 1981, with the second in command in the judicial hierarchy targeting his own chief, the judiciary’s primacy was almost compromised by the Supreme Court itself conceding that the executive could overrule the Chief Justice for “cogent” reasons. In 1993, the Supreme Court restored judiciary’s primacy. Later in 1998, answering a Presidential Reference on judicial appointments, the Supreme Court instituted the collegium consisting of the Chief Justice and four senior most judges to decide on appointments and transfers of judges. And that process is on now. It is not clear whether the new National Judicial Appointments Commission, which needs ratification by half the States to become law, will come into being or not. But, whether the judiciary had led the appointment process or executive, the accepted norm was always “secret soundings” within a very small group in the executive and judiciary. This led to lobbying and has corrupted the appointments process. It does not need a seer to say that transparency in judicial appointments is key to judicial independence. Secrecy and transparency can never go together. Secrecy can suppress the true facts about a wrong judge and sail him to the highest judiciary. Equally it can suppress the truth about the right judge and impede his elevation. Two cases – of Justice PD. Dinakaran, three years back and of Justice KL Manjunath now – demonstrate how secrecy in appointments can produce two completely opposite results.
In August 2009, by the “secret sounding” process the SC collegium elevated Dinakaran, a judge of Karnataka High Court then, to Supreme Court. In September 2009, Chennai-based Forum for Judicial Accountability levelled serious charges against Dinakaran. The Bar Council of India endorsed the charges and escalated the matter to Law Minister, Prime Minister and the President of India. Two reports from the collector of Tiruvallur District in Tamil Nadu confirmed the charges of land grabbing and acquisition of land beyond ceiling limits by Dinakaran. This forced the collegium to drop Dinakaran’s elevation. Thanks to secret soundings process the collegium completely failed in its due diligence on Dinakaran. Later, over 75 members of Parliament moved for Dinakaran’s removal and Rajya Sabha admitted it. In January 2010 Rajya Sabha Chairman Hamid Ansari constituted a three-member panel comprising Supreme Court Judge Aftab Alam, Karnataka Chief Justice JS Khehar and senior advocate PP Rao to examine the 12 charges framed against Dinakaran. The panel confirmed the charges. With Karnataka High Court not allocating work to him pending the inquiry, the Chief Justice of India empathetically transferred him to Sikkim High Court. The Sikkim Bar Council asked ‘how come a judge unfit for one state can be fit for another.’ Finally, Dinakaran resigned in July 2011. But within days, on August 4, he tried to withdrew the resignation, but fortunately the government refused to permit the withdrawal. This ensured that the move for removal abated. Dinakaran’s case demonstrated how secret soundings could nearly result in the elevation of an underserving person to the Supreme Court .
Look at the present case of Justice K.L Manjunath of Karnataka High Court. If “secret soundings” almost placed Dinakaran in the highest court, in Manjunath’s case, it is doing the very opposite – stonewalling his elevation as Chief Justice of Punjab and Haryana High Court. In Dinakaran’s case, the complaint was by eminent members of the bar. In Manjunath’s case complainant was one Dr Furquan, described as Delhi-based “RTI activist”. He sent two complaints to the President of India in October 2013. The Chief Justice of India and the Chief Justice of the Karnataka High Court have reportedly found them to be untrue, after inquiry. Obviously, it is the leaked “secret sounding” process that Manjunath might be elevated in the judicial hierarchy that provoked the complaint. Furquan’s allegations against Manjunath were: that Manjunath did not disclose his assets to the Chief Justice and he had assets disproportionate to his income. Both allegations seemed clearly untrue. Within three months of becoming the Additional Judge of the High Court in December 2000, Manjunth had filed the statement of his and his wife’s assets and also that of his daughter and his mother-in-law. Five years later, in October 2006, he filed another statement disclosing details of the site purchased by his daughter by selling her site declared earlier and some dry land purchased by his mother- in-law. In contrast in November 2009, the Karnataka High Court told an RTI activist that Dinakaran’s assets statements were not available on record! On the undisclosed assets issue, what Furquan had alleged as the unaccounted assets of Manjunath were found to be either false or were acquired by sale of already declared assets or by other known sources or by borrowings from banks. A transparent process would have prevented these scandalous allegations.
Furquan did not just stop at writing the two complaints. He sent copies of his complaints to all 28 judges of the Supreme Court and to the Chief Justice of Karnataka High Court. Within two months the complaint got printed as a long cover story in nine pages in the first issue of ‘Crime’, a newly started English version of a Malayalam magazine from Kerala. The editor of the magazine had already been sentenced to three months imprisonment in June 2012 in a case filed by the state Vice President of All India Lawyers Union, holding that an article in the magazine about him published in September 2011 was defamatory.Furquan’s choice of the magazine appeared appropriate for his task. After Furquan’s complaint and its publication in that rag, the Chief Justice of Karnataka reportedly wrote to the Chief Justice of India that the allegations were all false adding that a ‘veiled campaign is mounted’ not only by Furquan’s letters but also through a ‘glossy magazine freely circulated in legal circles in and out of the state of Karnataka’. On August 25, 2014 over 25 senior advocates that included two former advocate generals, the present additional advocate general, three former chairmen of Karnataka State Bar Council and also the present, President of Bangalore Advocates Association, wrote to the Chief Justice of India saying that they consider it their duty to present the correct facts about Manjunath. They said that the campaign against Manjunath appears to be “at the behest of some members of the higher judiciary itself.” The letter mocked at how properties belonging to others had been falsely attributed to Manjunath and how owners of those properties had sent legal notices to the rag. The senior lawyers also pointed out that the allegation that Majunath’s son, practising lawyer in the Supreme court, owns a flat in Delhi and a BMW7 series car was false. He owned a Maruti Swift car and resided in a rented flat. Listing the credentials of Manjunath, the senior counsels said “in his 26 years of service” as advocate and “14 years” as judge, not a single instance of judicial impropriety had ever been alleged against Manjunath. While the senior bar members defended Manjunath, almost the entire national bar had accused Dinakaran of impropriety. On Furquan’s charge that, in a case, Manjunath had favoured the society, in which his daughter held a plot, the senior lawyers responded that in that society many judges had plots and the Supreme Court had resolved the controversy. They also added that in that case Manjunath had done nothing except to direct the Bangalore Development Authority (BDA) to take action against the society in accordance with law and on principles of natural justice. The BDA had cancelled the lay out on a complaint by a third party without hearing the affected parties.
The conclusion is self-evident. “Secret soundings” can work both ways. It may help elevating a judge as it almost happened in the case of Dinakaran. Likewise it may as well stall the elevation of a judge like it has in the case of Manjunath. Discarding “secret soundings” and ensuring transparency in judicial appointments seem the only answer. A simple procedure may ensure transparency. One, there must be at least four honourable proposers for appointment as judge. Two, the profiles of candidates proposed for appointment should be put on website. Three, any one who objects to a candidate should file an affidavit to the collegium in confidence. Four, the collegium should refer the affidavit to proper agency to check and give a report. Five if the report shows that complainant filed false affidavit, prosecution must be filed against him. Six, anyone who does not follow the procedure of objecting and campaigns outside should be prosecuted. In a transparent model it would have been impossible even to propose Dhinakaran’s elevation to the highest court and it would have been difficult to make false allegations against Manjunath. Will the Supreme Court collegium end the “secret sounding” process and ensure transparency? If it does, it would not matter later whether the judiciary leads the judicial appointment process or the executive. Will those in authority think?
S Gurumurthy is a well-known commentator on political and economic issues