Apex Court collegium creates Indian judicial history
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.