The recent missive shot off by Justice Chelameswar to the Chief Justice, complaining about the functioning of the Supreme Court Collegium, sent waves of shock through the Bench, Bar and public. The extraordinary power exercised by the Supreme Court has positioned it as the last hope for the public—a lone sentinel standing against rampant corruption, falling morals and increasing intolerance. Add to this a failing economy, and the exalted position given to the Supreme Court in the public eye can well be understood. It was, therefore, natural that tremors of this letter were felt far and wide. For, after all, with great power comes great responsibility.
The letter itself is self-explanatory. It finds fault with the functioning of the collegium, the opaqueness of its decision-making and the non-co-opting of the views of all members. The correctness or otherwise of the contents of the letter would only be known to the five members of the collegium, but the reactions of some members of the Bench and Bar have centered around the appropriateness of publicising this issue. And therein lies the paradox.
Even the Constitution Bench while striking down the National Judicial Appointments Commission (NJAC) found fault with the functioning of the current collegium system and called upon the government to come up with a memorandum of procedure to govern the appointment of judges and matters related therewith. That the MoP has not fructified owing to basic disagreements between the judiciary and executive is another issue, but what is relevant is that the court itself found an opaqueness and a lack of transparency in the functioning of the collegium and implied a lack of consistency. That the court was willing to admit its failings is laudable and clearly showed an acceptance that Caesar’s wife be above suspicion.Transparency in functioning would be the best way to achieve this.
Why then the objection to the contents of such letter being made public? Or the fact that there are disagreements within the collegium. The correctness of the letter is a matter to be decided by its members and how the collegium is to function cohesively resolved by the collegium itself and its General.
If the objection from some quarters is that such a disagreement ought not to have been made public, the sequitur would be objecting to a transparency as to the functioning of the collegium and promote brushing existing differences of opinion therein under the carpet, away from the public gaze. If the cry is for transparency in the functioning of the collegium, it would be wholly anomalous to object to the fact of a disagreement—right or wrong —within the collegium being made public.
The objections levied against such open statement of disagreement appears to stem from the apprehension that it may make the collegium dysfunctional. But is it not an innate trait of the collegium system itself that a group of elders without any vested interest would act in harmony and consensus for the welfare of the judiciary and those it affects? That discussions among members be open and frank, and that they may even agree to disagree? After all, differing views are as essential to growth as are brilliant ideas. And the objection raised to the functioning of the collegium appears to be that such open and disagreeing views are not encouraged.
Continued discontent without resolving the differences would be catastrophic to the institution and yet, the debate at the Bar appears to centre around whether the judge should have made his differences public. Are we losing the woods for the trees? Are we, as a legal family, intent on demanding transparency from all others but keen to protect ourselves from it? Do courts, which proclaim transparency as a basic tenet of democracy and fair government, striking down executive action in the absence of transparency adopt a different yardstick for their own actions? I think not. I would like to believe that the present incident only brings to light failings in a collegium system hitherto tacitly accepted by all. And perhaps makes one want to reconsider the NJAC judgment and take a longer and harder look at Justice Chelameswar’s dissent and the views of other members of the Bench lamenting on the failings of the existing collegium system..
aryama_sundaram@hotmail.com
C Aryama Sundaram Senior advocate, Supreme Court