Apex Court collegium cre­ates In­dian ju­di­cial his­tory

The Free Press Journal - - EDIT - Olav Al­bu­querque The au­thor holds a Ph.D in me­dia law and is a jour­nal­ist-cum-lawyer of the Bom­bay High Court

The Supreme Court cre­ated In­dian ju­di­cial his­tory on Oc­to­ber 3, by post­ing on its of­fi­cial web­site de­tails of four in­cum­bent judges who were found un­fit for el­e­va­tion to the Madras high court in pub­lic in­ter­est. This is for the first time in its his­tory since the Bri­tish in­tro­duced their sys­tem of se­crecy in ju­di­cial ap­point­ments, that the Supreme Court collegium has gone pub­lic on why some as­pir­ing judges were found un­fit to be sworn in, in the larger pub­lic in­ter­est.

This de­ci­sion taken by Chief Jus­tice of In­dia (CJI) Di­pak Misra de­mol­ishes the think­ing that judges know best who will make good judges and who will not while de­lib­er­at­ing in a ca­bal-like at­mos­phere with­out any records be­ing main­tained of what was dis­cussed. More of­ten than not, judges’ kith and kin were el­e­vated as high court judges with ev­i­dence that some­times, guide­lines for ju­di­cial ap­point­ments had been flouted to favour a select few.

This per­pet­u­ated a sys­tem of so-called ju­di­cial dy­nas­ties be­ing cre­ated spe­cially in the Al­la­habad high court where Te­helka pub­lished the names of those judges whose rel­a­tives prac­ticed in the same high court. In one in­stance, the sis­ter of the then Chief Jus­tice of In­dia (CJI) Al­ta­mas Kabir was sworn in as a Cal­cutta high court judge flout­ing ju­di­cial norms. This roused the ire of a for­mer chief jus­tice of the same high court who al­leged he was not el­e­vated to the Supreme Court be­cause he had op­posed her el­e­va­tion.

Jus­tice Markandey Katju who was a judge of the Al­la­habad high court and later chief jus­tice of the Madras high court be­fore his el­e­va­tion to the Supreme Court, gave ex­am­ples of al­legedly cor­rupt per­sons be­ing sworn in as judges for a po­lit­i­cal quid pro quo dur­ing Man­mo­han Singh’s ten­ure. For­mer tele­com min­is­ter A. Raja al­legedly phoned a Madras high court judge to re­quest that bail be granted to a mur­der ac­cused of the DMK. The then CJI K.Balakr­ish­nan de­nied this but was con­tra­dicted by for­mer Madras high court chief jus­tice Hemant Gokhale who was also in the Supreme Court. Balakr­ish­nan’s kith and kin al­legedly amassed for­tunes dur­ing his ten­ure as CJI.

The apex court collegium com­prises Chief Jus­tice Di­pak Mishra, Jus­tices J. Che­lameswar, Ran­jan Go­goi, Madan B. Lokur and Kurian Joseph. On Oc­to­ber 3, de­tails re­lated to se­lec­tion of six judges for the Madras high court and three judges for the Ker­ala high court were up­loaded on the apex court’s web­site, un­der a new sec­tion marked as “Collegium Res­o­lu­tions”. The collegium sys­tem of judges ap­point­ing them­selves was cre­ated in what was known as the First Judges’ Case in 1993 and was crit­i­cised be­cause this sys­tem was opaque and never en­vis­aged in the Con­sti­tu­tion.

Apart from the ju­di­ciary, there are other pil­lars of democ­racy like the me­dia and the comptroller and au­di­tor gen­eral which also seek to­tal in­de­pen­dence from the govern­ment. In coun­tries, such as the U.S.A., the Pres­i­dent ap­points Supreme Court judges who are ques­tioned by the Sen­ate as to their po­lit­i­cal, re­li­gious and ide­o­log­i­cal lean­ings and be­liefs.

Th­ese in­ter­views in the U.S.A are video recorded for pos­ter­ity and can be ac­cessed by jurists and le­gal schol­ars which makes their sys­tem trans­par­ent un­like In­dia which con­tin­ued the Bri­tish ju­di­cial sys­tem with­out any changes even af­ter in­de­pen­dence. Now, the sys­tem of lawyers who were ju­niors of Supreme Court judges be­ing el­e­vated as high court judges may end for­ever with the rea­sons for re­jec­tion of as­pir­ing judges be­ing dis­played on the apex court web­site.

In a res­o­lu­tion adopted on Oc­to­ber 3, the Supreme Court collegium said, “The de­ci­sions hence­forth taken by the collegium in­di­cat­ing rea­sons (for re­jec­tion), shall be put on the web­site of Supreme Court, when rec­om­men­da­tion (s) is/are sent to the govern­ment with re­gard to cases re­lat­ing to ini­tial el­e­va­tion to a high court bench, con­fir­ma­tion as per­ma­nent judge(s) of any high court, el­e­va­tion to the post of chief jus­tice of high court, trans­fer of high court chief jus­tices/judges and el­e­va­tion to Supreme Court, be­cause on each oc­ca­sion, the ma­te­rial which is con­sid­ered by the collegium is dif­fer­ent.”

“This res­o­lu­tion is passed to en­sure trans­parency and yet main­tain con­fi­den­tial­ity in the collegium sys­tem,” the res­o­lu­tion said although it is un­clear how the collegium can main­tain trans­parency and con­fi­den­tial­ity at the same time since the two con­tra­dict each other. The Cen­tre en­acted the Na­tional Ju­di­cial Ap­point­ments Com­mis­sion Act in 2014 to reg­u­late ap­point­ment of judges which man­dated the ap­proval of the Union govern­ment and the prime min­is­ter in the se­lec­tion process. How­ever, the apex court in Oc­to­ber 2015 de­clared the law un­con­sti­tu­tional and con­tin­ued the collegium sys­tem.

But sub­se­quently, the then CJI T.S. Thakur wept be­fore Prime Min­is­ter Naren­dra Modi in pub­lic for al­legedly stalling ju­di­cial ap­point­ments while the govern­ment in­sisted that those cleared by the collegium could not be sworn in if they were a dan­ger to “na­tional se­cu­rity.”

The mat­ter was re­solved when the next CJI J.S. Khe­har al­legedly ca­pit­u­lated on the na­tional se­cu­rity clause. This opened the Supreme Court judges open to al­le­ga­tions that they were pro-govern­ment a charge hotly de­nied by Jus­tice D.Y.Chan­drachud who said the pres­i­dent of the Supreme Court Bar As­so­ci­a­tion could sit in the CJI’s court to see how many times the govern­ment was pulled up.

Judges, like Cae­sar’w wife should be above sus­pi­cion and their track record should be posted on the of­fi­cial web­site for all to see if they as­pire for high pub­lic of­fice.

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