Third Judges case

Now That the SC Has 9 New Judges, Who’s Responsible for Their Belated Elevation?

The swift clearance of the appointment of nine judges by the SC Collegium and the Union government, soon after Justice R.F. Nariman’s retirement, makes one wonder whether he is the fall guy for the inordinate delay in their elevation.

The Chief Justice of India, N.V. Ramana described Justice Rohinton Fali Nariman, who retired on August 12, as one of the lions of the Indian judiciary.

The CJI could well have added that Justice Nariman was perhaps the only lion in the Supreme Court to protect the institution from the executive’s influence in the appointment of judges.

The CJI’s use of the lion as the metaphor to describe Justice Nariman might have stemmed from his own experience of how the SC Collegium has been unable to recommend new judges to the Supreme Court during Justice Nariman’s membership of the Collegium. Justice Nariman was the lone voice in the five-member Collegium comprising the CJI and four senior-most puisne judges to oppose appointment of new judges to the Supreme Court before the elevation of Justice Akil Kureshi, Chief Justice of Tripura high court, in view of his seniority over other nominees.

The speed with which the appointment of nine judges to the Supreme Court materialised soon after Justice R.F.Nariman’s retirement makes one wonder whether the other judges of the Collegium were waiting for him to retire, in order to go ahead with fresh appointments to avoid further delay.

It cannot be denied that the nine judges sworn in on Tuesday deserved to be spared further delay in the process of their appointment. But for the delay, these nine judges could have had longer terms at the apex court than what they are now entitled to, given their age of superannuation at 65. For this, the SC Collegium should collectively own the blame, while Justice Nariman’s role was perhaps that of a dissenter.

In the normal course, a dissenter’s influence in the outcome of deliberations should be negligible. But in the peculiar nature of the SC Collegium’s functioning, as mandated by the Supreme Court’s judgment in the Second Judges case, it is not easy to dismiss the concerns of a dissenter as of no consequence. Justice Nariman’s role, therefore, has to be assessed with proper perspective, lest history judge him as having used a non-existent veto power, to effectively scuttle appointments for nearly 20 months.

CJI N V Ramana administers oath of office to the nine newly-appointed judges in the Supreme Court Auditorium, in New Delhi, Tuesday, Aug 31, 2021. Photo: PTI

Legitimate expectation as a rule of non-arbitrariness

In the Second Judges case, the nine-judge bench held that inter se, seniority amongst judges in their high courts and their combined seniority on an all-India basis is of admitted significance in the matter of future prospects. Inter se, seniority amongst judges in the Supreme Court, based on the date of appointment, is of similar significance. The bench, therefore, observed that it is reasonable that this aspect is kept in view and given due weight while making appointments from among high court judges to the Supreme Court.

Unless there are any strong cogent reasons to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court, the bench added. Apart from recognising the legitimate expectation of the high court judges to be considered for appointment to the Supreme Court according to their seniority, this would also lend greater credence to the process of appointment and would avoid any distortion in the seniority between the appointees drawn even from the same high court, the bench had held.

The bench reasoned that the likelihood of the Supreme Court being deprived of the benefit of the services of some who are considered suitable for appointment, but decline a belated offer, would also be prevented.

Also read: Justice Akil Kureshi Elevation: Should Token Gender Empowerment Trump Fairness?

The same bench also added that due consideration of every legitimate expectation in the decision making process is a requirement of the rule of non-arbitrariness and, therefore, this also is a norm to be observed by the CJI in recommending appointments to the Supreme Court.

Obviously, this factor applies only to those considered suitable and at least equally meritorious by the CJI, for appointment to the Supreme court, the bench clarified. Just as a high court judge at the time of his initial appointment has the legitimate expectation to become CJ of a high court in his turn in the ordinary course, he has the legitimate expectation to be considered for appointment to the Supreme Court in his turn, according to his seniority, the bench explained.

The bench further observed:

“This legitimate expectation has relevance on the ground of longer experience on the Bench, and is a factor material for determining the suitability of the appointee. Along with other factors, such as, proper representation of all sections of the people from all parts of the country, legitimate expectation of the suitable and equally meritorious Judges to be considered in their turn is a relevant factor for due consideration while making the choice of the most suitable and meritorious amongst them, the outweighing consideration being merit, to select the best available for the apex court.”

Justice A.M. Ahmadi, in his dissent, was conscious of the problems that might arise if the principle of seniority is followed blindly. The first four judges in all-India seniority may be from a single high court. If you appoint all of them, the ‘representative’ character of the court will be disturbed, he said. He then considered another instance where a senior-most judge of high court X could be 50th in India when it comes to seniority, leading to a situation where there will not be a single judge in the apex court from a high court, even if that is one the major high courts.

Justice Akil Kureshi. Photo: LiveLaw

“The CJI will find it difficult to nominate him for appointment and if he does there is every possibility of his seniors questioning the decision…,” he observed.

Justice Ahmadi was convinced that the rule of seniority and the legitimate expectation doctrine can have no relevance in determining the suitability of the appointee, who is a constitutional functionary. “The seniority principle and the legitimate expectation doctrine would only push merit to the second place,” he held. But even he was of the view that where both the candidates under consideration are of equal merit, inter se seniority may have a role to play, subject to other requirements for maintaining representative character, etc. being satisfied.

Justice Kuldip Singh, in his separate opinion, had held that seniority rule stagnates the system due to lack of enterprise; merit, on the other hand, does justice to the selected and brings vigour to the system. But he also agreed with Justice J.S. Verma who wrote the majority opinion, that appointments to the Supreme Court are to be made on the basis of selection on merit but in the process of selection the senior judge in the same court is entitled to be considered in preference to the junior one.

In the Third Judges case, another nine-judge bench opined in the Presidential reference case that strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority, in respect of each senior judge who has been passed over. What has to be recorded is the positive reason for the recommendation, the bench answered the President, in response to his reference seeking advisory opinion under Article 143 of the constitution.

Also read: Fresh Appointments to SC Stalled Due to Differences on Elevating Justice Akil Kureshi

Justice Nariman, during his term as judge of the Supreme Court, revived the doctrine that manifest arbitrariness can be a ground for striking down a law. He applied the doctrine in several landmark cases, overruling decisions which were contrary to it.

Therefore, when a nine-judge bench considered legitimate expectation (of a high court judge to be elevated to a Supreme Court judge in view of his seniority) as a requirement of non-arbitrariness in decision-making by the CJI, Justice Nariman could not have gone against that explicit ruling, simply to facilitate a consensus within the Collegium.

Absence of consensus

Put in this context, let us examine whether members of the SC Collegium other than Justice Nariman were correct in disagreeing with him on the question of elevating Justice Akil Kureshi to the Supreme Court ahead of other appointees who are junior to him. The majority judgment in the Second Judges case contemplates the non-appointment of a person recommended on the ground of unsuitability.

Justice R.F. Nariman. Photo: Youtube

It says that such non-appointment must be for good reasons, disclosed to the CJI to enable him to reconsider and withdraw his recommendation on those considerations. The judgment even favoured the non-appointment of a person recommended by the CJI, for reasons to be recorded, in public interest, if other judges were against it.

In Paragraph 19 of the advisory opinion in the Third Judges case, the Supreme Court observed:

“If the majority of the collegium is against the appointment of a particular person, that person shall not be appointed…we have little doubt that if even two of the Judges forming the collegium express strong views, for good reasons, that are adverse to the appointment of a particular person, the CJI would not press for such appointment”.

Doubtless, Justice Nariman was in a minority in the Collegium when he sought the elevation of Justice Kureshi.

Also read: Centre Has Its Way, Supreme Court Collegium Reassigns Justice Akil Kureshi

But did the majority express strong views against Justice Kureshi, for good reasons, that were adverse to his appointment? One can only speculate, and Justice Nariman was probably convinced that there were neither strong views nor good reasons which militated against elevating Justice Kureshi.

In Paragraph 20 of the advisory opinion in the Third Judges case, the Supreme Court observed:

“It may be that one or more members of the collegium that made a particular recommendation have retired or are otherwise unavailable when reasons are disclosed to the CJI for the non-appointment of that person. In such a situation, the reasons must be placed before the remaining members of the original collegium plus another Judge or Judges who have reached the required seniority and become one of the first four puisne judges. It is for this collegium, so re-constituted, to consider whether the recommendation should be withdrawn or reiterated. It is only if it is unanimously reiterated, that the appointment must be made. Having regard to the objective of securing the best available men for the Supreme Court, it is imperative that the number of Judges of the Supreme Court who consider the reasons for non-appointment should be as large as the number that had made the particular recommendation.”

It is true that the previous Collegium with Justice Nariman as a member did not recommend Justice Kureshi, and therefore, the question of withdrawing or reiterating (if the Union government returned it for reconsideration) it did not arise.

The collegium simply anticipated the consequence of recommending Justice Kureshi along with other appointees, who may be acceptable to the current dispensation at the Centre. In that case, the Centre might have faced the compulsion of delinking Justice Kureshi from the rest to accord its approval for the latter.

Given the reservations against such delinking of the appointees unilaterally by the Union government, the Collegium perhaps saw wisdom in doing it itself to avoid the embarrassment of being slighted by the government.

Therefore, the scenario envisaged by the Supreme Court’s opinion in the Third Judges case would not become irrelevant simply because there was no recommendation with regard to Justice Kureshi. Although Justice Nariman might have retired on August 12, the Collegium which implicitly decided against recommending Justice Kureshi after his retirement ought to have considered the reasons for his non-appointment, in conformity with the spirit of the Supreme Court’s opinion in the Third Judges case.

The Collegium’s opaque functioning does not help us to assume that it could have been the case.

How the Modi Government Is Using Its Pocket Veto to Neutralise Primacy of the SC Collegium

By finalising a few names recommended by the collegium in accordance with the existing MoP but refraining from considering the rest on the ground that the MoP is not valid, the government is acting inconsistently and without any rationale.

By finalising a few names recommended by the collegium in accordance with the existing MoP but refraining from considering the rest on the ground that the MoP is not valid, the government is acting inconsistently and without any rationale.

File photo of Prime Minister Narendra Modi and Chief Justice T.S. Thalur. Credit: IANS

New Delhi: Chief Justice T.S. Thakur’s charge against the central government on October 28 – that it is decimating the judiciary by sitting on the collegium’s recommendations for several months – may have seemed unusual and harsh to those in power but it underlines the growing sense of exasperation within the judiciary, Supreme Court watchers say.

Justice Thakur has alleged that it is the executive which is stalling appointments recommended by the Supreme Court’s Collegium for vacant judgeships in the high courts.

Attorney general Mukul Rohatgi, however, has maintained that the Supreme Court’s constitution bench decision on December 16, 2015 prevented the government from considering the names recommended by the collegium on the basis of the existing Memorandum of Procedure (MoP) – whose revision, in accordance with that decision, is the bone of contention between it and the collegium.

The Supreme Court’s December 16, 2015 order came after its main judgment in October 2015, setting aside the formation of the National Judicial Appointments Commission (NJAC) as an alternative to the existing collegium system of appointing judges to the higher judiciary – which it evolved through its judgment in the Second Judges case in 1993 and fine-tuned in the Third Judges case in 1998.

On his part, Justice Thakur believes the MoP issue is a red herring – as the existing memorandum has not been seen as a hurdle in clearing some judicial appointments after the December 16, 2015 order.

The number of judges’ vacancies in the 24 high courts now stands at 464, out of a total strength of 1079, which includes 255 vacancies in the position of permanent judges, and 209 vacancies in the position of additional judges. If the present stand-off continues, the number of vacancies will only grow.

The principles laid down by the Supreme Court in the Second and Third Judges cases, reiterated in the National Judicial Appointments Commission (NJAC) case, in October last year, are clear: If the government wants reconsideration of any recommended judicial appointment, it can return the proposed candidate’s name to the collegium for reconsideration. But this step may be invoked only once, and if the collegium sticks to its recommendation, then the appontment is binding on the government. Therefore, the question of primacy – if the collegium follows the norms laid down in the Second and Third Judges’ cases – is settled in favour of the judiciary.

What the rulebook says

But does the government have the option of delaying its decision on the collegium’s recommendations, and if so, is there any time limit within which it has to either accept or return them for reconsideration by the collegium?

The existing MoP, followed since 1999, is clear on this:

Appointments to the high court should be made on a time bound schedule so that the appointments are made well in advance preferably a month before the occurrence of the anticipated vacancy (Paragraph 11).

The most relevant question here is about the time limit within which the central government ought to finalise a recommendation sent by the collegium.

Paragraph 15.1 of the MoP says as follows:

“Consultation by the Chief Justice of India with his colleagues should be in writing and all such exchange of correspondence with his colleagues would be sent by the Chief Justice of India to the Union Minister of Law, Justice and Company Affairs. Once the names have been considered and recommended by the Chief Justice of India, they should not be referred back to the State Constitutional authorities even if a change takes place in the incumbency of any post. However, where it is considered expedient to refer back the names, the opinion of CJI should be obtained.

“The Union Minister of Law, Justice and Company Affairs would then put up as early as possible, preferably, within three weeks, the recommendation of the CJI to the Prime Minister who will advise the President in the matter of appointment.”

Justice Thakur has alleged that there has been an inordinate delay of nine months – and that the government his essentially sitting on the recommendations for appointment of high court Judges, sent by the collegium.

The delay of nine months – when the existing MoP gives only three weeks to the government – is indeed unusual, and the government’s explanation that it is because of non-finalisation of the revised MoP does not square with the facts.

The process of revising the existing MoP, in accordance with the order delivered by the Supreme Court’s constitution bench on December 16, 2015, is an ongoing affair. After all, the MoP has undergone several revisions since independence.

It has not been possible to finalise the new MoP because of sharp differences between the government and the CJI-led collegium on certain clauses of the new MoP, as drafted by the law ministry. The collegium has to ensure that the revised MoP is consistent with the Supreme Court’s December 16, 2015 order.

This process of consultation between the government and the collegium on the revised MoP, as mandated by the constitution bench, takes time – thus providing both sides with an opportunity to reach a final agreement.

The task, however, is not easy.

The Supreme Court has agreed with the government that changes in the existing MoP – such as, widening the zone of consideration, transparency keeping in mind the sensitivity of the issue, making the procedure broad-based by introducing certain supporting measures whereby candidates can be screened and evaluated, and complaints against them evaluated through a secretariat – are broadly in tune with the majority of the suggestions it had received for reforming the collegium.

Why the MoP is not the issue

But nowhere in its December 16, 2015 order did the Supreme Court ask the government and the collegium to not follow the existing MoP till a new one is finalised.

Indeed, this question had come up during the hearing itself. The presiding judge, Justice J.S. Khehar, had told counsel that there was no bar on the collegium meeting and recommending names even during the hearing, and there was no question of the collegium recommending names if the government could not consider and finalise them.

In any case, if the government had any doubts about the import of the December 16, 2015 order relating to the validity of the existing MoP till the new one is finalised, it could have asked the same constitution bench to clarify its order, say observers.

Instead, what the government has done is to consider and finalise a few names recommended by the collegium in accordance with the existing MoP, while refraining from considering the remaining ones on the ground that the MoP is not valid, citing the Supreme Court’s December 16, 2015 order. This has only exposed its inconsistency, which is devoid of any rationale.

If the government is aggrieved that the process of finalising the MoP is taking an inordinately long time because of the collegium’s intransigence on certain clauses drafted by it, it should explore other remedies to redress the problem. It could draw the attention of the constitution bench which heard the NJAC matter to the impasse, and seek remedies. It could even seek the Supreme Court’s advisory opinion in the matter, under Article 143 of the constitution.

But observers also say that the collegium, which includes two members of the constitution bench which heard the NJAC matter, namely Justices Khehar and Jasti Chelameswar, could itself reflect on the merits of having in place the revised MoP at the earliest – thus pre-empting any complaint by the government that the judges themselves are responsible for the delay.

As the Supreme Court is rehearing the matter on November 11, the collegium may well reflect on the import of what B.R.Ambedkar had explained in the Constituent Assembly, while preferring the phrase “consultation with the Chief Justice of India”, instead of his “concurrence”, during the debate on the mode of appointment of judges to the higher judiciary.

Ambedkar observed as follows:

“I personally feel no doubt that Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all failings, all the sentiments, and the prejudices which we as common people have; and I think, a veto upon the appointment of judges is really to transfer the authority to the Chief Justice, which we are not prepared to vest in the President or the Government of the day. I, therefore, think that that is also a dangerous proposition.”

If Ambedkar was against granting veto power to the CJI in the matter of appointment of Judges, he would have opposed with equal vehemence, the pocket veto, which the government is currently exercising by sitting over the recommendations of the CJI-led Collegium.

No doubt, the Supreme Court has interpreted the word “consultation” to mean “concurrence”, and primacy for the CJI in the consultation process. But the present stand-off shows that even the Chief Justice and his colleagues could not have anticipated that the government would use its pocket veto to neutralise the collegium’s primacy.

Resolving the ‘Standoff’ Over Judicial Appointments Will Take Two to Tango

We are left in the end with the collegium once again, and the only effective remedy for its problems is for the members of the collegium to exhibit a united front. This requires bold statesmanship on their part.

We are left in the end with the collegium once again, and the only effective remedy for its problems is for the members of the collegium to exhibit a united front. This requires bold statesmanship on their part.

Supreme Court of India. Credit: Shome Basu

I suggest that the recent “stand–off” on judicial appointments can be resolved as follows:

(i) By the government at the Centre informing the Chief Justice of India that despite its reservations, it accepts – in letter and spirit – the Supreme Court decision of October 2015, and will faithfully implement the memorandum of procedure (MoP) as suggested by the court order of December 2015;

and

(ii) by the collegium of judges headed by the CJI informing the government at the Centre that it will in future recommend names of persons to be appointed as judges (of high courts and of the Supreme Court) as a united body – either unanimously or by majority – without discord.

I believe there is simply no other way.

Since the Constitution was adopted in 1950, the entire edifice on which judicial appointments had rested was the primacy of the Chief Justice of India. Accordingly by convention, the executive invariably accepted the advice of the CJI as to who should or should not be appointed as judges to the high courts and Supreme Court. And the system worked. No one bothered too much about the precise language used in the relevant article (124) of the Constitution.

How the collegium was born

However, in 1981, in the First Judge’s case a majority in a bench of seven judges opined – “sticking in the bark of words”, to borrow a critical phrase from the US Supreme Court – that on a textual reading of the relevant provisions of the Constitution, the recommendations of the CJI in the matter of appointment of judges in the higher judiciary was not constitutionally binding on the Government of India.

It took several years of hand-wringing and grand-standing, and a whole new batch of appointees in the Supreme Court, to get a larger bench take a fresh look at Article 124.

When a bench of nine judges ultimately did, in 1993, it set aside the majority judgment in the First Judges Case. It said that the Constitution gave to the judges of the Supreme Court the last word as to who should or should not be appointed as judge in the higher judiciary. But the primacy of the Chief Justice, in the meanwhile had become undermined because, during the 1975-77 emergency, orders were passed – with the express approval of the CJI – for transfer of particular high court judges to other high courts at the instance of the executive only because such judges had delivered judgments not to the liking of the executive (Centre or state).

As a result, the bench of nine judges said (in what is now known as the Second Judges Case) that in the matter of appointment of judges it would not affirm the doctrine of the primacy of the CJI, but that on the question of appointment, the opinion of a collectivity of judges headed by the CJI would be preferred. And so the collegium system got first established, with an added caveat: if the government at the centre did not accept the recommendation of the collegium, it would be presumed that the government had not acted bona fide!

Five years later, in a decision rendered by another bench of nine judges (now known as the Third Judges Case) what was said by the majority in the Second Judges Case (7:2) was now affirmed unanimously (9:0). The judgment in the Third Judges Case also recorded a significant statement of the then attorney general of India, made on behalf of the Union of India, that the Union was not seeking a review or reconsideration of the judgment of the court in the Second Judges Case (1993). By express acquiescence of the executive, the collegium system was to stay.

Over the years, however, a lack of transparency in the working of the collegium system had led to much criticism of it.

A constitutional solution squandered

Justice M.N.Venkatachaliah. Credit: Wikimedia

A constitutional way out – there can be no other way – was then recommended by a high-powered commission that had been set up in the year 2000 to suggest improvements in the working of the constitution. Its chairman, the former distinguished Chief Justice Venkatachaliah, said in his report, that a National Judicial Commission for appointment of judges was the need of the hour, but he also said that in order that the commission’s recommendation did not violate the doctrine of basic structure (then in existence since it was first propounded in 1973 by majority in a full bench decision of 13 Judges), he would recommend that the National Judicial Commission should consist of five members of which a majority must be the three senior-most judges of the Supreme Court.

Such a change, whilst not adversely affecting the basic-structure-doctrine, would constitutionally (and validly) alter the system of appointments from that of the recommendations of what was in essence an exclusive judges’ club, to the recommendations of an institutional body – a judicial commission – which included a minority of non-judicial members. Pursuant to the recommendation of the Venkatachaliah commission, the NDA government, then in office, introduced in parliament the Constitution 98^th Amendment Bill 2003 but it could not be passed because general elections were called, and the Lok Sabha was dissolved.

Twelve years later, after the general elections of May 2014, the BJP, having secured an absolute majority of seats in the Lok Sabha, formed a government in the Centre, and promptly brought in a new law with regard to appointment of members of the higher judiciary. Under the new law, which was not based on the Venkatachaliah formula, supremacy was given to non-judicial members over judicial members in the National Judicial Appointments Commission – and with a power of veto (in certain contingencies) by non-judicial members over even the unanimous choice of judicial members in the commission. Both the Constitution Amendment Bill and the supporting legislative Bill (the NJAC Bill) were passed unanimously by the two houses of parliament.

The Constitution 99^th Amendment Act, 2014, and the NJAC Act, 2014, were challenged in the Supreme Court in writ petitions – the lead petition being filed by the Supreme Court Advocates-on-Record Association (who had, incidentally, also been the petitioners in the Second Judges Case).

After over four months, the constitution bench of five judges of the Supreme Court in October 2015 (by a 4:1 majority) struck down both the Acts as violating the basic structure of the constitution. The concept of the independence of the judiciary was acknowledged by all parties (including government) to be a part of the constitution’s basic structure; the government of the day however argued that appointments of judges in the higher judiciary was not at the core of, or even a part of, the basic concept of independence of the judiciary. But the constitution bench of the court held otherwise.

Since adequate representation was not given to the “judicial component” in the National Judicial Appointments Commission set up under the new provisions, both the constitutional amendment and the law were struck down as violating a basic feature of the constitution. The law as declared by the court instantly became constitutionally binding – under Article 141 – on one and all.

By a later order passed in December 2015, the same constitution bench, in accepting the suggestion of the attorney-general, empowered the Government of India to finalise the existing memorandum of procedure (as had been done pursuant to the judgment of 1993), but with a specific direction that the principles laid down in the Second Judges Case (1993) and in the Third Judges Case (1998) should be faithfully implemented. The “stand–off” between the government and the Supreme Court now is because the MoP has not yet been finalised as directed.

The only way forward now

The collegium system having become firmly entrenched by law declared in October 2015 by the highest court, any harkening back to the Venkatachaliah commission’s recommendations is no longer constitutionally permissible.

In a recent article in the Indian Express, Upendra Baxi has said that we have been now confronted with a situation of “mistrust in governance – whether executive or adjudicative”. And he has suggested the holding of a referendum as a way out of the impasse. I disagree – since it will not be a constitutional way out. Our constitution does not countenance any decision-making by referendum, but only by enacted law or by court decision. The proposal to include in our constitution a provision for a referendum had been attempted in the year 1978 (part of the Constitution 44th Amendment Bill) but this provision failed to muster the requisite votes necessary for it to become a part of the constitution. More significant are the consequences of a referendum, not only irreversible, but at times disastrous: Britain’s vote to leave the European Union has plunged that country into its greatest crisis since 1945.

Now to the second–part of resolving the “stand-off”.

In matters concerning the appointment of judges many of us practising lawyers – although totally averse to the government of the day (any government) having the last word in the appointment of judges – do have reservations about the smooth working of the collegium. As for instance, when Judge No. Two – the judge who will almost automatically by convention succeed the sitting CJI on his retirement at age 65 – disagrees with Judge No. One (i.e. the sitting CJI) as to the name/names of judges to be recommended to the government for appointment. This is not at all an imaginary example – it has happened in the past; and regrettably, past experience has also shown that when this occurs, invariably Judge Nos. Three, Four and Five in the hierarchy get cold feet, shuffle them a bit, and say nothing.

The only effective remedy for such a complete paralysis in the collegium system is to exhibit a united front; which requires bold statesmanship on the part of the collectivity of members of the collegium; because, although constitutionally entrenched, only courageous good-sense can save the collegium system from otherwise everlasting public ignominy! If in this our judges fail us, God forbid, then God help us – because no one else on Earth can.

Fali S. Nariman is a distinguished constitutional jurist and senior advocate to the Supreme Court of India since 1971

New Appointments, Transfers in Old Bottle Mar Collegium’s Image

The recommendations, on the face of it, fail to satisfy the criteria mentioned in Supreme Court’s December 16, 2015 judgment, and therefore, raise the question of whether the efforts of the constitution bench to reform the collegium have gone in vain.

Lawyers confer against the backdrop of the Supreme Court. Credit: Shome Basu

The more things change, the more they stay the same. The way the Supreme Court’s neo-collegium has begun to recommend the appointment and transfer of judges only serves to confirm this adage.

The Supreme Court’s judgment last year striking down the 99^th Constitution Amendment Act, and the National Judicial Appointment Commission (NJAC) Act was considered by many as a watershed event affirming its independence from the executive.

The constitution bench delivered its main judgment in the case, with a 4:1 majority, on October 16, 2015, and a consequential judgment on improving the existing collegium to recommend new appointments and transfers of judges, on December 16.

The government, and the chief justice of India, one would expect, have finalized the revised memorandum of procedure (MoP) to appoint and transfer judges, in the light of these twin judgments delivered last year. The non-finalisation of this MoP was a reason why the collegium had so far not recommended any new appointments, despite the number of vacancies in the high courts and in the Supreme Court gradually rising, threatening to disturb the justice-delivery mechanism seriously.

There was nothing to prevent the collegium, once it was revived by the October 16, 2015 judgment, from making recommendations as per the existing MoP which was being followed since 1999, after the Supreme Court’s judgment in the Third Judges case. In fact, the counsel for the lead petitioner, the Supreme Court Advocates-on-Record Association, Fali S Nariman told the bench that the collegium need not wait even for the consequential judgment, but should follow the old MoP to make its recommendations, after October 15, 2015, so that vacancies do not accumulate. The constitution bench had repeatedly made clear that it would not come in the way if the collegium wanted to meet and recommend new appointments.

However, both the then CJI, H.L. Dattu and the present CJI, T.S. Thakur, felt that propriety required the collegium not to meet and make recommendations, till the Supreme Court delivered its consequential judgment on improving the functioning of the collegium, and the revised MoP came into force after consultations between the government and the CJI.

This was because during the hearing of the NJAC case, the constitution bench acknowledged that there were many flaws in the functioning of the collegium that had eroded its credibility and required reform. Therefore, if new appointments and transfers were to be recommended under the old system, the appointees and the transferees would carry the same taint, which marred the image of the previous collegium, it was felt.

Although this explanation offered by Chief Justice Thakur made sense, the collegium soon had to meet and recommend transfers and new appointments, faced with the reality that revising the MoP was bound to take time – because of the requirement of consultation with all stake-holders, including state governments.

But having waited so long, and with reports suggesting that the revised MoP, after the required consultations with all the stake-holders, was almost finalised, should not the neo-collegium follow the revised MoP before making its recommendations public?

The constitution bench, in its consequential judgment in the NJAC case, out of deference to the government, said: “The Government of India may finalize the existing Memorandum of Procedure by supplementing it in consultation with the CJI. The CJI will take a decision based on the unanimous view of the collegium comprising the four seniormost puisne judges of the Supreme Court.”

The bench was careful not to call it a revised MoP, although if the factors suggested by the bench are taken into consideration, it would amount to a substantial revision.

The bench appears to have used “may” rather than “shall”, as the matter involves consultation among constitutional functionaries, including those in responsible positions in the Central and state governments and the members of the collegium.

What the court had itself indicated

Five factors were held by Supreme Court’s own consequential judgment to be very important.

First, the MoP, the bench said, may indicate the eligibility criteria, such as minimum age, for the guidance of the collegium (both at the level of the high court and the Supreme Court) for appointment of judges, after inviting and taking into consideration the views of state governments and the Government of India (as the case may be) from time to time.

Second, the eligibility criteria and the procedure as detailed in the MoP for the appointment of judges ought to be made available on the website of the court concerned and on the website of the Department of Justice of the Government of India. The MoP, the bench said, may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the judges in the collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of judges.

Third, in the interest of better management of the system of appointment of judges, the MoP may provide for the establishment of a secretariat for each high court and the Supreme Court and prescribe its functions, duties and responsibilities, the bench had said.

Fourth, the MoP, the bench said, may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a judge.

Fifth, the bench said, the MoP may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommended persons by the collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.

If the new MoP – whether you call it revised, or existing, but supplanted – includes these factors suggested by the bench, they were nowhere in display in the collegium’s recent recommendations of appointments of four judges to the Supreme Court.

Worse, if media reports are any indication, the draft MoP included a clause to empower the government to reject a recommendation of the collegium in the national interest, and in the interest of the security of the state. In the absence of transparency, one does not know whether this clause remains in the final draft.

The three high court udges whom the neo-collegium has recommended for elevation – Justices A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan– may indeed satisfy the eligibility criteria envisaged under the MoP, as they are senior-most in the all-India ranking of high court judges. The fourth judge to be nominated is senior advocate of the Supreme Court, L. Nageswara Rao

But the recommendations, on the face of it, fail to satisfy the other factors mentioned in the December 16, 2015 consequential judgment, and therefore, raise the question of whether the efforts of the constitution bench to reform the collegium have gone in vain.

The controversial transfer of the chief justice of the Uttarakhand high court, K.M. Joseph, to Hyderabad, also recommended by the collegium, close on the heels of his quashing of president’s rule in Uttarakhand (which is now under challenge before the Supreme Court) sends ominous signals. It is true that the consequential judgment in the NJAC case is silent on the proper guidelines to be followed in the case of transfers recommended by the collegium. But, as in the case of the other two controversial recent transfers, namely, Rajiv Shakdher (from the Delhi high court to the Madras high court) and Justice Abhay Mahadeo Thipsay (from the Bombay high court to the Allahabad high court), Justice Joseph’s transfer only cements doubts about the fairness of the collegium.

Forget NJAC or Collegium, the Judiciary is Sinking Under the Burden of Pending Cases

Unless something is done about the huge backlog of appeals, the Indian judiciary will soon be beyond redemption regardless of the system used to appoint judges.

Unless something is done about the huge backlog of appeals, the Indian judiciary will soon be beyond redemption regardless of the system used to appoint judges

The good old days. File photo of judges of the Supreme Court in the 1950s. Credit: Supreme Court of India

The recent verdict of the Supreme Court quashing the National Judicial Appointments Commission (NJAC) Constitutional Amendment Act has reopened the debate over the manner in which judges in India are appointed. The October 16 verdict only restores the collegium system created by judges themselves in the Second Judges and Third Judges cases, which, apart from having no constitutional basis whatsoever – there is no mention of any collegium in Article 124 of the Constitution – has set up a mechanism by which judges appoint judges. This is a system totally lacking in transparency, as Justice Chelameshwar, the sole dissenting judge, has pointed out in his judgment.

The same had earlier been said by Lord Cooke in his article, ‘Where Angels Fear to Tread’ in which he called it a “sleight of hand”, by Justice Krishna Iyer and Justice Ruma Pal, who had said the collegium decisions were often reached by ‘ trade-offs’, – i.e. “You agree to my man, and I will agree to yours” – and which often resulted in undeserving persons being appointed.

In fact, a number of undeserving persons who were appointed as Supreme Court judges on the recommendation of the collegium, or were recommended by the collegium but blocked at the eleventh hour when it was discovered that they had committed serious improprieties, were mentioned by name by some counsels during oral arguments before the court.

My own opinion is that it matters little whether we have the NJAC or the collegium system or any other system, as the Indian judiciary is beyond redemption thanks to the burden of cases it is shouldering.

Pendency is the problem

Consider the facts. In the Allahabad High Court (my parent High Court), criminal appeals filed in 1985 are coming up for hearing today, that is, after 30 years. The same is true for civil appeals. Is this a judiciary or a joke? As an aside, I have been informed by lawyers that if a case is adjourned after the first date (because the opposite party or government counsel wants to file a reply or for some other reason) in some courts, the case will never be listed again unless the interested litigant is resourceful enough to ensure it.

The present Chief Justice of India, Justice HL Dattu, said soon after being appointed CJI last year that cases in the Supreme Court would ordinarily be disposed off in two years, and criminal trials in five years. Almost every CJI makes similar claims. Justice RM Lodha, a former CJI, made the meaningless remark that judges will work 365 days a year.

There are 33 million cases pending in the law courts of India, and by one estimate even if no new case is instituted it will take 360 years to clear the arrears. While many people talk of clearing the arrears, no one is really serious about it. Arrears, including arrears in the Supreme Court, have kept mounting.

When I was in the Supreme Court, a bench of which I was a member heard a case in 2007, Moses Wilson vs. Kasturiba which had been instituted in 1947. Another case, Rajendra Singh (Dead) thru Lrs. & Ors. Vs. Prem Mai, which was decided by a bench of which I was a member, took 50 years, since it was initiated in 1957 in the trial court and was finally decided on appeal in 2007. The decision in the case observed:

We may quote a passage from the novel Bleak House written in Charles Dickens’ inimitable style :-
“Jarndyce vs. Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises.

“Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce vs. Jarndyce, without knowing how or why; whole families have inherited legendary hatreds with the suit…

“There are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee house in Chancery Lane; but Jarndyce vs. Jarndyce still drags its dreary length before the court, perennially hopeless.”

Is this not descriptive of the situation prevailing in India today? I mentioned the situation in the Allahabad High Court earlier; when criminal appeals come up, the lawyer who filed it is usually dead, and the accused in the criminal case is also often dead or untraceable. I am informed that in the Bombay High Court, original suits have been pending for 25 years or more.

I doubt whether the lawyer community seriously wants any reform, and as for Supreme Court judges, they mostly have a term of only a few years to seriously attempt it (despite the tall talk of almost every CJI).

A person who gets involved in litigation usually ends up weeping after some time as date after date (tareekh par tareekh) is given by the court but the case is never heard.

The Allahabad High Court had set a norm that no judge of the subordinate judiciary should at one time have more than 300 cases pending before him. When I was a judge of that High Court, a judge of the U.P. subordinate judiciary (the CJM Kanpur Nagar) came to meet me, and I asked him how many cases were pending in his court alone. He said 30,000. Another subordinate judiciary judge (CJM Ghaziabad) told me he had 21,000 cases. Yet another said 15,000. Now if a man can carry 100 pounds weight but an elephant is put on his head what will happen? He will collapse. And that is precisely what has happened to the Indian judiciary.

And this is apart from the massive corruption which has crept into the Indian judiciary. When I started my law practice in the Allahabad High Court in 1971, there was no corrupt judge in the High Court, nor in the Supreme Court (though corruption had started in the lower judiciary). Today, I believe the higher judiciary is not immune. Shanti Bhushan, a very senior lawyer of the Supreme Court, and former Union law Minister, had filed an affidavit in the Supreme Court several years back stating that half of the previous 16 CJIs were corrupt (he named them in a sealed envelope which he gave to the court), and he was uncertain about two more. Since then, more Chief Justices of India who retired had serious allegations of corruption against them.

In these circumstances, what difference will it make whether we have the NJAC or collegium? So far as the public is concerned, it the difference is the same as that between Tweedledum and Tweedledee.

Markandey Katju is a former judge of the Supreme Court of India