Justice Chelameswar’s penchant for probity and commitment to Macaulay’s principle of “reform that you may preserve” created a misplaced din and controversy, compliments from people like Justice Ruma Pal and outbursts from people like Justice Ganguly.
It is to be noted that the majority of five-judge Constitution bench, after striking down the National Judicial Appointments Commission (NJAC) Bill as unconstitutional, conceded the deficiencies and interstices when it sought alternatives to make the collegium system more transparent and accountable. Unusually in the history of the Supreme Court it solicited opinions from various sections of society, including the public. The Supreme Court’s understanding (misunderstanding !) with the government is a subsequent history. Thus its opinion in upholding the collegium system is conditioned by the rider that it requires improvement for more transparency. What Justice Chelameswar wanted is in conformity with and for fulfilment of the same. He did not insist to perpetuate his dissent.
There is no “judicial indiscipline” involved in any way. Transparency promotes accountability. The public from whom the suggestions are solicited have a right to know. The process of appointment involves power. Constitutionally there can’t be absolute power and power should be exercised with fairness. Logically it requires a reasoned decision. In Second Judges case, (1993) 4 SCC 441, the nine-judge bench opines, “expression of opinion in writing is an in-built check on exercise of the power, and ensures due circumspection.” It also holds in Paragraph 480 that to reduce the area of discretion to a minimum, “effective consultation in writing” is a check against arbitrariness. What Justice Chelameswar asking for is a record of the same.
Way back in the S P Gupta case (1982), the Supreme Court opined that the appointment of judges was not an executive act but the result of a constitutional process and added that it must be observed in word and spirit. The appointment of Judges can never be stated as an adjudicatory process either. Slowly but steadily the coup is complete through various judgments of Judges Cases (1982-2015) culminating into the NJAC judgment with the expansive interpretations of the Constitutional provisions with anglophilic sophistications and bringing in constitutionally unknown terms like ‘collegium’.
The mutual trust that the executive and the judiciary had during the Nehruvian period is slowly eroding. (Refer to Granville Austin’s book Working A Democratic Constitution: The Indian Experience, 1999) Francis Bacon wrote in “On Judicature”: “The place of justice is a hallowed place, and therefore not only the Bench, but also the foot space and precincts and purpose thereof ought to be preserved without scandal and corruption”.
No doubt the judiciary is to be sufficiently insulated to ensure its independent and impartiality. And it is non-negotiable but to guarantee the same, in the words Supreme Court itself, persons of sterling quality and character, undaunting courage and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill will or affection. (Supreme Court Advocates-on-Record Association case).
Though the independent and impartial judicial systemis sine-qua-none of democratic ethos, accountability and transparency are integral parts of its functioning and minimal criteria for the rule of law. Secrecy in action may lead to systemic flaws.
When free discussion is denied, hardening of the arteries of democracy has set in, free institutions are but a selfless form and the death of the republic is at hand, said Randolph Hearst. Memory of the public recollects how persons with questionable credentials are recommended through the collegium for the positions of the judges and how the cases went up to impeachments.
One can see the exhortations of the Supreme Court in N Kannadasan vs Ajay Khose and Others (2009) 7 SCC 1 by applying the principle of purposive interpretation and principle of public trust and confidence in such a situation. Hopefully, Justice Ganguly recollects such situations. Judges are not angels.
Arthur T Vanderbilt once observed that it is in the courts and not in the legislation that our citizens primarily feel the keen, cutting edge of the law. If they have respect for the work of the courts, their respect for law will survive the shortcomings in every other branch of the government. But if they lose their respect for the work of the courts, their respect for law and order will vanish to the great detriment to the society [The Challenge of Law Reform, Princeton University Press,1953) pp 4-5] It is not an issue of Justice Chelameswar anymore. It is the issue of the public. Justice Chelameswar will be remembered for riveting and rousing the public opinion.
Who would know how many people with alacrity and grit have lost their chance to become justices of High Courts or the Supreme Court? Who would know how many justices with efficient administrative skills and appropriate judicial gumption could not become chief justices? Above all, who would know how many judicial errors have been committed by those who are not worthy of their seats?
Prof T V Subba Rao is a visiting professor at the National Law School of India University, Bengaluru
