Supreme Court judge Jasti Chelameswar, the junior-most member of the five-judge collegium of the apex court, has broken the omertà code. He recently went public against the functioning of the collegium (which identifies candidates, does due diligence and makes recommendations for appointment as judges), and refused to attend its meetings. It was for the first time that an insider had questioned the system.
The collegium, described as a system wherein judges appoint judges, has been under attack since its inception in 1993, when it came into being as a result of a Supreme Court judgment. It has often been termed unconstitutional and criticised by former judges for its lack of transparency. Now a person who is a part of the collegium has raised voice against it and demanded changes in the way it functions.
When the collegium met on September 1, Chelameswar did not attend it. Instead, he sent a letter to Chief Justice T.S. Thakur, which is said to have conveyed his decision not to attend the meetings of the collegium as there was lack of transparency in the manner in which names went through or were rejected. Chelameswar reportedly said that no reason or opinion was recorded by the collegium, and the two senior-most judges decided the names and came back to the meeting for a yes or no.He, however, has not recused himself from the collegium, and is learnt to have asked for the files to be circulated to him, with the views of the other judges put down on them. If the Chief Justice and the other judges agree to this, it would mean that one of Chelameswar’s demands—that the reasons for accepting or rejecting a name should be recorded—would be met.
Chelameswar was the lone dissenting voice in the five-judge bench that trashed the law meant for setting up of a National Judicial Appointments Commission for appointment of judges. He was in favour of the NJAC. A member of the collegium for eight months, he is said to have been upset with some of its recent decisions.
It is said in legal circles that Chelameswar himself is a victim of the system. He was chief justice of the Gauhati and Kerala High Courts, and was brought to the Supreme Court in 2011. It is said that there was an inordinate delay in his elevation to the apex court, and he could have been in line to the post of the Chief Justice otherwise.
With an insider rebelling against the collegium, the judiciary will be forced to make some amends in it. Other judges have also complained about the opacity of the manner in which the collegium works. The agenda of the meetings is not circulated and the minutes are not kept; so there is no record of reservations expressed by any of the collegium members. “He is right when he says the working of the collegium is not transparent,” said R.S. Sodhi, former judge of the Delhi High Court. “The Chief Justice says he will sort it out. The question is, why do you have to wait till one member decides to go public with his criticism?”
Chelameswar’s outburst has come at a time when the collegium is locked in a tussle with the government on the framing of the new Memorandum of Procedure (MoP) for appointment of judges. Its own decisions on appointments will be questioned at a time when the Chief Justice has been attacking the government for delaying appointments in the higher judiciary.
Former Supreme Court judge A.R. Lakshmanan said the appointments to the Supreme Court and High Courts will get affected unless the Chief Justice takes Chelameswar on board. “The moral authority of the collegium has taken a beating,” he said. Lakshmanan was chairman of the Law Commission when it gave a report to the government in 2008 recommending abolition of the collegium. It recommended a law restoring the primacy of the Chief Justice of India and the power of the executive to make appointments to the top judiciary.
Former Supreme Court judge A.K. Patnaik, who was a member of the collegium, said the NJAC was not such a bad idea if the contentious clauses were dealt with. “It was institutionalised and it would have been regulated by the Constitution,” he said.
Former additional solicitor general Vikas Singh said had the judiciary made amends in time, it would have avoided a situation where the executive could now look for a role for itself in the appointment of judges. He had written to former chief justice R.M. Lodha, urging him to take steps to reform the collegium system. “Justice Thakur will have to bring in transparency. Minutes of the meetings have to be recorded. This will resolve the immediate crisis. But the bigger issue that the judiciary has to deal with is the new MoP,” he said.
The development is expected to have an impact on the new MoP. The government would insist on certain clauses that it feels will bring in more transparency. Justice Sodhi said the judiciary would have to agree to a secretariat being set up to vet the names to be taken up for discussion by the collegium.
However, there is also the apprehension that the judiciary may have to pay a price for making big concessions to the executive in its fight to retain its exclusive control on appointment of judges. “I feel any dissent will weaken the Supreme Court,” said Prof Ranbir Singh, vice chancellor of National Law University, Delhi. “The differences should have been sorted out internally. It will further weaken the collegium system and give the government an upper hand in the fight over the new MoP.”
Former Supreme Court judge Vikramjit Sen said going public against the collegium would not help the judiciary. “While questions are being raised about the collegium system, it is by far a better system than letting it go into the hands of someone else,” he said. “Decisions will be guided by vested interests and the wrong kind of people will come in.”