The President of India has notified the appointment of nine Supreme Court judges by accepting the recommendation of the Collegium. There are now three women judges. One among them is a potential woman Chief Justice for India. The list also reflects better representation on several counts.
But rather than those who are now elevated to the Bench, discourse is more on those names omitted by the Collegium. Going by the principles laid down in the 2nd judges case (1993) and the 3rd judges case (1998), seniority, merit and diversity are some of the relevant parameters in choosing “the best” candidates for the higher judiciary. Exclusion of Justice Akil Kureshi, Chief Justice of the Tripura High Court, from the Collegium list has caused immense consternation in the legal circle. He is superseded by others, which is dispiriting.
In 2010, Justice Kureshi had to consider a plea by the CBI for custodial interrogation of the present Home Minister Amit Shah. Despite the vociferous arguments by Shah’s counsel, Kureshi ordered that the CBI shall have custody of Shah for a couple of days.
There is some disappointment over the exclusion of Chief Justice S Muralidhar of the Orissa High Court as well. As a judge of the Delhi High Court, he directed the Delhi Police on February 26, 2020 to quickly decide on registration of First Information Report against the BJP leaders including a minister, for the alleged hate speech that contributed to the communal violence in Delhi. When the Court was told that the actions in accordance with law would follow at the appropriate stage, he asked — “Which is the appropriate stage? After the city has been burnt down?” This question is a testimony for the judge’s commitment to Rule of Law and the oath he has taken while adorning the Bench. Justice Muralidhar was immediately transferred to another high court.
The history of the Supreme Court tells us about executive’s displeasure, meddling with judicial elevations. While discharging the constitutional duty, the judges sometimes need to take hard decisions. Renowned British lawyer David Pannick has put it pithily — “Judges do not have an easy job. They repeatedly do what the rest of us seek to avoid: make decisions.” Justice HR Khanna was denied elevation as the Chief Justice of India due to his famous dissent in ADM Jabalpur Case (1976) where he said that fundamental rights are non-negotiable even during the time of Emergency. In 1973, Justice AN Ray was appointed as the Chief Justice of India by superseding Justices J M Shelat, K S Hegde and A N Grover, the senior judges who in the same year opined in Kesavananda Bharati Case that the basic structure of the Constitution is unshakable and Parliament cannot alter it. All the three judges resigned from the Supreme Court for upholding their dignity and self-respect.
A few people think that controversy over the present choice of judges is “unwarranted”. PDT Achary, former Secretary General of the Lok Sabha, says that this “needless controversy” is based on “the non-existing ‘Rule of Seniority’ “. This view is erroneous. Firstly, judicial appointment is too serious a matter that it cannot be left to the judges or their Collegium alone. Therefore, a national debate on such appointment cannot be dismissed. Secondly, though seniority is not the sole criteria, it remains one among the relevant considerations. According to the law laid down by the top court, to choose a junior over a senior, the former should have “outstanding merit”. While seniority is objective, tangible and even a constant, “merit”, especially of the judges, is an idea that is relative, subjective, and sometimes obfuscating. The argument that Justice Kureshi or Justice Muralidhar was less meritorious would be totally unconvincing.
Justice Krishna Iyer famously described Collegium as a “curious creation with no backing under the Constitution”. On judicial selection, he said that “no principle is laid down, no investigation is made, and a sort of anarchy prevails.” Rather than anarchy, it is the inter-play of various considerations that finally determines the approval of names as judges of the top court. Even the present confirmation has happened after a long impasse of around two years.
Chief Justice NV Ramana is praised for his pragmatic approach that put an end to the uncertainty which led to a good number of vacancies in the country’s top court remaining unfilled. But, at the end of the day, it is crucial to see that no one is sidelined or ignored for merely adhering to his constitutional oath. In the realm of judicial appointments, along with pragmaticism, principles too are important. Rule of law needs to be made an imperative in the realm of judicial selection as well.
It is an Indian tragedy that one of the most pivotal process in the democracy — selection of judges to the constitutional courts — is done by a body called Collegium which lacks democratic or constitutional legitimacy. The judgments of the top court on appointments, however, repeatedly endorsed the unelected body of Collegium which does not have a representative or participative character, in the democratic sense.
The nation’s aspiration for an independent Commission for judicial appointment is practically discarded by the executive and the judiciary. It is a challenge which the legal fraternity needs to take up, despite the egregious inertness of our political leaders in addressing this issue.
Kaleeswaram Raj
Lawyer, Supreme Court
Follow him on Twitter @KaleeswaramR kaleeswaramraj@gmail.com