Justice Jasti Chelameswar has struck a powerful blow against the poisonous legacy of the Supreme Court in the Second Judges Case, 1993, which usurped the Executive’s power to appoint judges and replaced it with an opaque system of selection by dominant judges. By breaking the omerta code on this sham, Justice Chelameswar has shattered the ethical fig-leaf beneath which a brotherhood of judges functioned without accountability even within the closed circle that supposedly took decisions by ‘consensus’.

By refusing to attend meetings of the Supreme Court ‘collegium’, a word that does not exist in the constitution, Justice Chelameswar has punctured the legitimacy of the system and put his brother judges in a bind. By not recusing himself from the collegium – which could replace him with a more amenable judge – he has forced it to make itself accountable, first to all collegium members, and then to the judicial community, including the Bar Association. This revolutionary step disrupts a status quo contrived during an era of weakening central authority.

Such misappropriation of power was unthinkable during the reign of Jawaharlal Nehru, Indira Gandhi or Rajiv Gandhi, who ruled with absolute majorities. Now, after a hiatus of over two decades, the Centre is once again ruled by a party with its own majority in Parliament (in coalition by choice); hence, it would be appropriate to restore the constitutional position. This is not to say that weak coalition regimes should have their authority eroded by judicial overreach.

According to media reports, Justice Chelameswar has written a three-page letter to Chief Justice of India, T.S. Thakur, asserting that there is no point in attending collegium meetings if its deliberations are kept under wraps. Though the National Judicial Accountability Judgment (October 2015) emphasised transparency et al, the collegium continued with its old policy of keeping its deliberations, as also communications with the Centre on the Memorandum of Procedure, a secret.

The system reportedly functions by the two top judges deciding the names of candidates to be elevated – no reasons or opinions are recorded - and asking the collegium to approve the same. Genuine objections against undesirable candidates are shot down. Hence, Justice Chelameswar has taken the stand that he would examine files referred to him, regarding judicial candidates, and record his views in writing. This will automatically force the collegium members to record their own views before passing on the files to him.

Justice Chelameswar was the sole dissenter at the time of the NJAC judgement, delivered by a five-Judge Constitution bench. Terming as unfortunate the quashing of the NJAC Act, passed unanimously by Parliament, he urged the judiciary to introspect if the collegium system has become “a euphemism for nepotism” where “mediocrity or even less” is promoted and a “constitutional disorder” does not look distant. He disagreed that judicial primacy in appointments of judges is a basic structure of the Constitution: “To wholly eliminate the Executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people.” Not only does this have no parallel in any other democracy, it erodes the basic feature of checks and balances.

In December 2015, Justice Chelameswar joined the Court judgment on the Collegium as it proposed measures such as transparency, secretariat, eligibility criteria, and a mechanism for redressal of complaints for Government to follow while finalising the new Memorandum of Appointment. However, he soon became disenchanted with the collegium’s functioning. His current action has brought it to a grinding halt.

In his dissenting judgment on NJAC, Justice Chelameswar had criticised the collegium system for being “absolutely opaque and inaccessible both to public and history, barring occasional leaks.” Protesting its lack of accountability, he said, “The records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or does good for the people of this country.” Disagreeing with the notion of judicial primacy, he felt that total exclusion of Government from the appointment process was “wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy.”

Within the legal fraternity, the collegium system is considered opaque and clannish. Justice Ruma Pal has reportedly stated on record that “Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system.” Institutional independence has been compromised by growing sycophancy and ‘lobbying’. None of this bodes well for the reputation of the judiciary whose growing tendency to overreach itself is leading to loss of credibility among the citizenry.

By demanding transparency in collegium proceedings, Justice Chelameswar has raised questions over the integrity of the present system. In previous appointments upheld by the Government of India, there have been hints that a preferred line of succession was being prepared for the next ten years, or more. If true, this deserves to be disrupted. Certainly, judicial vacancies are a serious problem. But if the apex Court is truly perturbed about the state of justice delivery, it must retreat from the brinkmanship practiced by the Chief Justice of India, who openly chastised the Prime Minister for not mentioning judicial vacancies in his Independence Day speech.

It bears stating that in the struggle to wrest some power from the Supreme Court, the Government erred in suggesting that a committee of former judges and eminent jurists be set up to prepare a shortlist of candidates for the collegium to consider. The Supreme Court rejected this on grounds that Government would insert its nominees into the selection process. But the danger is that this could turn into another cozy club where covert activists push favourites to the bench. Surrendering the power to make judicial appointments is abdication of a constitutional responsibility; we need restoration of the pre-1993 status quo.

Media reports hint that the Centre is reluctant to clear the suggested appointments as those being recommended are related to judges or politicians. Since Justice Chelameswar has revolted against the system by which such selections were made, the panel of 250 nominees must be scrapped immediately. A fresh selection must be made with Government exercising its supremacy.

EOM