Justice J. Chelameswar of the Supreme Court has made some shocking revelations regarding the process of appointment of judges: that the Collegium does not record or communicate the views of its members to the government; that it does not even maintain the minutes of its own meetings; that the views or dissent of its members are not recorded or communicated to the government; and nor are the views of the Chief Justices of the High Courts made known to the government.
Justice Chelameswar’s letter to the Chief Justice containing these observations is a stinging indictment of the Collegium. In fact, it is a confession from within the guild about its guilt. This indicates that the Collegium has been violating with impunity the Third Judges case judgement on which it is founded.
The core mandate of the Third Judges case judgement was: ‘In respect of each of the recommendations of the Collegium, the opinion of all its members, and of the senior most judges of the Court who hail from the High Courts to which the recommendation relates, should be in writing.
Their views must be conveyed by the Chief Justice to the Government with his recommendation. The others’ views the Chief Justice or members of the Collegium may elicit might not be put in writing, but that should also be communicated by way of a memorandum to the government’. The judicial leadership should be worried about the rot affecting the judiciary. Instead, it seems to be obsessed with its claim of primacy of the judiciary which, as Justice Chelameswar has exposed, has virtually ended up as only a claim of privacy of the judiciary. This serious matter needs a national debate and should not be left only to the judiciary to decide in a way as a judge in its own cause.
Betrayal
If what Justice J Chelameswar, a judge of the Supreme Court, is reported to have written to his Chief on the ways of the Court’s Collegium is true, it is not just shocking that the Collegium has been violating with impunity the Third Judges case judgement which had founded it. Chelameswar seems to indict that the Collegium has betrayed the trust reposed in it by five eminent judges of the Court who constituted it. The core mandate of five judges in the Third Judges case [para 22 of the order dated October 28, 1998] which the Collegium ought to abide by may be summarised thus: ‘In respect of each of the recommendations of the Collegium, the opinion of all its members, and of the senior-most judges of the Court who hail from the High Courts to which the recommendation relates, should be in writing. Their views must be conveyed by the Chief Justice to the Government with his recommendation. The others’ views the Chief Justice or members of the Collegium may elicit might not be put in writing, but that should also be communicated by way of a memorandum to the government’. The two fundamental principles laid by the Court are: the Collegium must record and communicate the views of all its members and others, including their dissent, to the government.
Collegium indicted
Now, 16 years after the Third Judges case, Justice Chelameswar shocks the nation when he says that one, the Collegium does not record nor communicate the views of its members to the government. Two, it does not even maintain minutes of its own meetings. Three, the views or dissent of its members are not recorded nor communicated to the government. Four, nor are the views of the Chief Justices of the High Courts made known to the government. Chelameswar’s letter to the Chief Justice is a stinging indictment of the Collegium. In fact, it is a confession from within the guild about its guilt. Chelameswar has also decided not to attend the Collegium meetings and has asked the Chief Justice to send him the recommendations which he will examine from his chamber and give his views. The judge has also taken a high moral ground by stating, “In less than two years I am going to retire. I will not look up to anyone for any post-retirement jobs. I will not be seen around working for this Commission or that. I have no personal agenda nor is there anything personal in my objection to the way the Collegium is functioning”. He does not need to adduce more proof to claim that he is speaking only in public interest. He has said, rightly, “Let there be a public debate about the issue. The public is the only stakeholder in judicial appointments. How can you keep the whole society out of it?” By his courageous action he has made the Collegium directly answerable to the public. The Chief Justice of India, who cried before the Prime Minister, also publicly indicted him for not dealing with judiciary’s issues in his Independence Day address, has merely responded to Justice Chelameswar by saying, “We will sort it out”. But the chief of the highest judiciary ought to know that it is now beyond the four walls of the Collegium to sort it out as the genie is out of the bottle and into the public domain.
Capitulation 1970s and 1980s
The judicial leadership of India will do well to recall that when the Judiciary-Executive confrontation began with the call for a committed judiciary by the Indira Gandhi regime and the supersession of the three judges in 1973, the moral credentials of the judiciary were very high and the stock of the political Executive was very low. Now the judiciary’s credibility is certainly no higher than the political Executive’s. The judiciary’s moral stock declined gradually first and expeditiously later. During the Emergency when it was required only to stand up, the highest judiciary betrayed the nation and the Constitution in the ADM Jabalpur case by endorsing the dictatorship almost as integral to the Constitution. The judiciary began giving on a platter all judgements supporting the socialist order which the political Executive demanded, by reading the Directive Principles of the Constitution over the Fundamental Rights. Today none of those judgements will form constitutional precedents because the political Executive itself has given up socialist policies! Again, in the early 1980s the judiciary meekly surrendered its primacy in making judicial appointments to an executive that had brought the judiciary to its knees and kept it under leash for over two decades, eroding its credibility further. No one in the high judiciary talked of judicial independence or primacy in judicial appointments between the 1970s and 1980s. In was only in the Second Judges case in the early 1990s, with the political dynasty out of power and the political Executive weakened by coalition politics, that the highest judiciary asserted its institutional independence and primacy in appointments. It declared that the views of the Chief Justice in the domain were unquestionable and binding. Very soon the emphasis on the Chief justice’s primacy seemed misplaced. On a Constitutional reference by the most moderate political Executive in India’s democratic history, in 1998, the Third Judges case instituted the Collegium mechanism of recorded collective opinion making for judicial appointment. Now Justice Chelameswar discloses that the Collegium does not make any record and functions so opaquely — read secretly. Chelameswar has let out a well kept secret that neither the letter nor the spirit of the Third Judges case was complied with by the Collegium.
Corruption charges
Any charge of judicial corruption against the higher judiciary was blasphemous till the early 1970s. No more now. The first instance of higher judicial corruption was the infamous Justice Veeraswami case, an FIR against whom was filed in 1976. In 1979, the Chief Justice of India permitted the CBI to file a charge sheet against the judge under the Prevention of Corruption Act. The matter never reached the trial stage. From associating a judge with bribes being considered a sin till the early 1970s to judges being increasingly accused of corruption, the reputation of the Indian judiciary began nosediving. Here is a bird’s eye view of how its moral decline occurred. After the Veeraswami case, during 1991-93 Justice V Ramaswami’s impeachment proceedings shook the judiciary. In 1995 A M Bhattacharjee, chief justice of the Bombay High Court was forced to resign after it was found that he had received `70 lakh as a book advance from a publishing firm known to have links with the underworld. In 1996, Ajit Sengupta, a High Court judge, who was alleged to have passed routine ex parte orders and ad-interim stay on anticipatory bail pleas of smugglers having links with the Mumbai underworld, was arrested for FERA violations after retirement. Between 1996 and 2001, two chief justices of the Supreme Court were in the news for very wrong reasons that bordered on corruption.
In 2002, allegations of sex for acquittal were made against a judge of the Rajasthan High Court. In 2002, three judges of the Punjab and Haryana High Court were charged with cash for jobs for their kin, leading to two judges resigning and one judge being kept out of judicial work. In 2002-03 there were allegations of a sexual brawl against three High Court judges of Karnataka which led to an inquiry by the Chief Justice of India who gave them a clean chit. In 2003, a judge of the Delhi High Court resigned when, in a CBI raid on property developers, a draft judgement by him was found in their possession. And the judiciary’s reputation reached its lowest point in September 2009 when the civil rights activist Prashant Bhushan openly charged in a media interview that, “half of the last 16 chief justices were corrupt”. A reputed senior counsel, as amicus curiae, initiated proceedings for criminal contempt against Prashant Bhushan and a three-judge bench of the Supreme Court led by Chief Justice Altamas Kabir issued notice to Bhushan. It became worse in September 2010 when Shanti Bhushan, former law minister and one of the senior-most counsels of the Supreme Court, filed an affidavit telling the Court to its face that, at least “eight of the 16 chief justices of India were definitely corrupt”, naming many of them and adding that six of them were “definitely honest”, but he could not comment on the remaining two judges. The contempt proceedings have not seen the light of day till now. Seven years have passed by. The latest report of the Court on September 9, 2016 says that there is no order by the Court even for listing the matter. To make it worse, Justice Katju, a retired judge of the Supreme Court, spoke about how a corrupt judge was successfully imposed on the Court by the UPA government which two of the Chief Justices of India — read Collegium under them — could not resist.
Judicial leadership should worry
That was the state of the judiciary when, in 2015, Parliament almost unanimously passed the National Judicial Appointments Commission Act which attempted to make judicial appointments a more transparent affair. The Supreme Court shockingly struck down the entire law, holding that the law would affect judicial independence and the primacy of the judiciary, which are basic features of the Constitution. The Court did not even attempt to do what it normally does, namely, read down the law to make it constitutional. Now look at the facts. Given the facts about the multiplying judicial corruption which was totally absent till the 1970s, it needs no seer to say that the judiciary does not command the high respect it undoubtedly commanded three decades back. The situation has turned worse in the last decade when half of the chief justices of India are openly charged as corrupt and the apex court could not even proceed with the contempt charge against such a serious allegation. The judicial leadership itself should be worried about this rot. Instead of addressing the serious decline, it seems to be obsessed with its claim of primacy of the judiciary which, as Justice Chelameswar has exposed, has virtually ended up as only a claim of privacy of the judiciary. This serious matter needs a national debate and should not be left only to the judiciary to decide in a way as a judge in its own cause.
Appeal to brooding spirit of law
Justice Chelameswar’s reported letter is consistent with his sole dissent in the NJAC case. In his separate judgement, he pleaded for transparency as vital for constitutional governance, argued against opaqueness in the Collegium’s work, asserted that the assumption that “primacy of the judiciary” in the appointment of judges is a basic feature of the Constitution “is empirically flawed”, pointed to the lack of accountability because of default of documentation, voted against exclusion of the government from the process of appointment of judges and upheld the NJAC law vetoed by the other judges. Chief Justice Hughes [Supreme Court of USA [1936]] said that a dissenting judgement “is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” Justice Chelameswar’s dissenting order is indeed such an appeal to the future intelligence to correct the erroneous approach to judicial appointment into which the present Court has been betrayed into.
PS: After the NJAC verdict, the government is asking the Collegium to do what the Third Judges case had directed the Collegium to do, namely to record and send to the government the views including the dissent of any member. Chelameswar’s dissent is a protest against the Collegium not recording and sending the views of all to the government as mandated by the Third Judges case. This in short is the reason for the stand off between the judiciary and the executive today. The solution is for the Collegium to go by the Third Judges case which seems to be precisely the demand of Justice Chelameswar too in his letter.
S Gurumurthy is a well-known commentator on political and economic affairs.
Email: guru@gurumurthy.net