Judicial appointments, senior: India
This is a collection of articles archived for the excellence of their content.
A: the collegium debate
When India gained independence, the Federal Court, succeeded by the Supreme Court on January 26, 1950, had two Indian judges — Harilal Jekisondas Kania, who went on to become the first CJI, and S Fazal Ali.
Just days before Kania was to become the first CJI on January 26, 1950, PM Jawaharlal Nehru had expressed irritation over Kania’s comments on making Bashir Ahmed a permanent judge in Madras HC. He asked Sardar Patel whether Kania should become the CJI given his ‘unjudicial comments’ on Ahmed. Patel told Kania that failure to make Ahmed a permanent judge would be regarded as communal.
Patel told Nehru that he had ‘managed Kania’ on the Ahmed issue and the PM must understand that it was a common trait “with some heads of the judiciary who feel that they have the sole monopoly of upholding its independence”.
What Patel would have said now is difficult to imagine, when sitting and retired Supreme Court judges, politicians, judicial activists and journalists have taken on the task of protecting the judiciary’s independence.
Till 1970, appointment of SC judges was a sedate affair. Neither the people nor politicians bothered who became a judge, and how. Things changed dramatically in 1973, when the Indira Gandhi government superseded three judges to make Justice A N Ray the CJI. Appointment of SC judges became stormy affairs with instantaneous outpouring of nationwide outrage.
Before his retirement, bench led by Justice A N Ray in 1976 created outrage by upholding the government’s decision to suspend all fundamental rights, including right to life, during Emergency. A bigger public outrage followed when the government wreaked vengeance by superseding Justice H R Khanna, the lone judge who refused to consign fundamental rights to the embers of Emergency.
From 1970 till the advent of a seven-judge bench decision in the S P Gupta case in 1981,
the first of three decisions in what is known as ‘Judges Case’ which together altered the Constitution-mandated judges’ appointment process through judicial interpretations, the government appointed ‘committed judges’.
Y V Chandrachud, CJI from 1978 till 1985, towards the end of his tenure began publicly expressing his frustration with the judge-selection process. In 1983, he said the process was ‘outmoded’ and deserved a ‘decent burial’ as appointments were ‘not purely based on merit’.
After retirement, he spoke about his experience in appointment of judges, “Mrs Gandhi never overruled me, but the government has got every weapon in its hands, so the vacancies are kept unfilled. The government tries artful persuasion, drops hints, and keeps egging you. No one is interested in having a good judiciary. No one is interested in having good judges.”
The present imbroglio over the Centre’s decision to seek reconsideration of the recommendation to appoint Justice K M Joseph as an SC judge is a deja vu moment. Given Justice Chandrachud’s disappointment and continued executive interference, the SC gave two more rulings, in 1993 and 1998, establishing a collegium of SC judges headed by the CJI for selection of judges to the SC and HCs.
It is debatable whether the collegium improved the quality of judges or broadbased the zone of consideration. But the tug-of-war between the government and judiciary continued over appointment of judges. Parliamentarians thought collegium system was outmoded and gave it a burial by enacting the National Judicial Appointments Commission (NJAC) Act in 2014.
Lawyers’ bodies and several individuals challenged its constitutionality, terming the enactment a brazen invasion of judicial independence. A five-judge bench in 2015 quashed NJAC and revived collegium system. But the SC acknowledged that collegium system was opaque and selected judges arbitrarily. Despite the judgment, the collegium continues to function as before. The tug-of-war continues between the judiciary and the executive over appointments.
Interestingly, Justice J Chelameswar gave the lone dissenting judgment in the NJAC case and castigated the collegium system. One of the finest SC judges — Justice Ruma Pal — was quoted in the NJAC judgment as saying that some appointments to constitutional courts were done following the ‘you scratch my back, I scratch yours’ principle.
Justice Kurian Joseph agreed that malaise had crept into collegium system. The bad apples, churned out by the collegium, had the potential to ruin the reputation of judiciary, he said and laid the blame at the door of the executive for keeping silent and giving up its say when wrong appointments were recommended by the collegium.
In the NJAC judgment, Justice Kurian Joseph said, “There is no healthy system in practice. No doubt, the fault is not wholly of the collegium. The active silence of the executive in not preventing such unworthy appointments was actually one of the major problems.
“The second and third Judges Case had provided effective tools in the hands of the executive to prevent such aberrations. Whether ‘joint venture’, as observed by Justice Chelameswar, or not, the executive seldom effectively used those tools. Therefore, the collegium system needs to be improved requiring a ‘glasnost’ and a ‘perestroika’.”
The ‘glasnost’ and ‘perestroika’ are still in the realm of conjecture. The executive seems to be taking a leaf out of Justice Kurian Joseph’s judgment to play an active role in appointment of judges to the SC, starting with Justice K M Joseph’s. But the Centre appears to have chosen the wrong recommendation to shed its ‘active silence’.
With all and sundry, who hailed or castigated judgments depending on its acceptability to them, building immense pressure daily on the collegium, it is most likely that Justice K M Joseph’s name will be reiterated in its coming meeting. It has no other option. The government also appears to have lost interest in carrying on the fight for reforms in the collegium.
Appointment of Justice K M Joseph as an SC judge has brightened. But the manner in which the collegium operates with pulls and pressures within, coupled with those exerted by political and judicial activists, the prospect of reforms in judges’ appointment remains a distant dream.
How executive lost control over judicial appointments
The Times of India, Oct 17 2015
Indira killing, Babri case, graft strengthened Judiciary's hands
In the early decades after the adoption of the Constitution, judicial appointments were the government's prerogative, judges being designated on the President's recommendation before politically-tainted decisions set the stage for the judiciary snatching the right from the executive. Ajit Ninan Provisions of the Constitution under Article 124(2) and 217(1) clearly say that while the judiciary should be consulted, the final say vests with the government, the President appointing judges by warrant under his hand and seal. This is how it was from 1950 to 1993.
The intrusion of political considerations saw the term “committed judiciary“ gain currency during Indira Gandhi's tenure as PM, generating a backlash strengthened by the Emergency . The executive hold was further tightened with consultation with judiciary being held as not tantamount to consent.
Political developments from Indira's assassination in 1984 to the installation of a Janata Dal government in 1989 to the return of Congress and the appointment of Narasimha Rao as PM saw a string of corruption scandals make news and influence public opinion adversely on legislators and Parliament.
Congress under Rajiv Gandhi lost the 1989 polls with the Bofors scandal symbolizing the opposition's agenda. Once the unstable V P Singh government fell, the Rao regime was rocked by cases like cash for votes in a no-confidence motion and hawala scandal.
Governments of the day found their legitimacy eroded following events like the Babri Masjid demolition.Corruption scandals left the political class with little will and moral authority to protest against the judiciary's moves to appropriate the power to appoint judges. In 1993, when SC ruled that primacy in appointing judges vested with the judiciary , Rao's government was still reeling under the Babri demolition aftermath as it fended internal challenges and the opposition.
For much of his tenure, Rao had to deal with the saffron threat and efforts of par ty dissidents to unseat him.
The setting for UPA 's bid to legislate the NJAC bill was not very propitious either as Manmohan Singh's government in its second term found itself battling one scam after another. As its political capital drained, BJP saw no reason to help with passage of the NJAC, though it supported the legislation in principle.
Armed with a majority , BJP felt it was better placed to push through the NJAC and mounted a spirited bid in the court arguments. Passage by state governments bolstered its case, but SC has tenaciously defended its turf.
Before 1993: Appointment of judges: superior courts
Whatever the process, men of character must pick judges
LEGALLY SPEAKING –
The Times of India Jul 29 2014
Till 1993, judges were appointed to the Supreme Court and high courts by the President, read the Union government, after consulting the Chief Justice of India. The CJI seldom disagreed with the executive.
Two significant judgments dramatically altered the process. In 1993, a nine-judge bench in Supreme Court Advocates on Record Association case took away the executive’s primacy in appointment of judges and gave it to the CJI. In 1998, another nine-judge bench answered a presidential reference by laying down an elaborate procedure – the CJI-headed collegium system – to select and recommend to the government persons to be appointed as judges of the SC and HCs.
The executive was given the option of returning a name for the collegium’s reconsideration. If the name was re-sent, the executive was bound to appoint him. For the last 16 years, this judge-appoint-judge system has been in operation. Markandey Katju has experience of both the systems. He was appointed a judge of Allahabad High Court by the executive in 1991. But his later appointments -chief justice of Madras HC and transfer to Delhi HC and later as judge of SC in April 2006 – happened under the collegium system.
He often gave vent to his intolerance towards corruption. In March 2007, while sitting with Justice S B Sinha, he had said, “Everyone wants to loot this country. The only deterrent is to hang a few corrupt persons from the lamp post.
The law does not permit us to do it, but otherwise we would prefer to hang the corrupt.” Katju, who would have preferred instant Taliban style justice in the absence of limitations of law, strangely remained tight lipped for nearly a decade on a ‘corrupt judge’ continuing in Madras HC. His revelations have stirred a fresh debate on what would be the ideal process for appointment of judges to the SC and HCs? Both systems had their share of questionable products.
Two famous judges – Y V Chandrachud and P N Bhagwati – were appointed by the executive. They capitulated to political pressure much more gravely than Justice R C Lahoti, who was taken in by the then wily law minister H R Bhardwaj in 2005 and granted extension of service to a ‘corrupt judge” despite the collegium unanimously deciding not to continue with his services.
On April 28, 1976, a five-judge bench pronounced judgment in the ADM Jabalpur case and buried all fundamental rights, including the most fundamental among fundamental rights – the right to life – under political pressure of the Indira Gandhi regime which wielded draconian powers during Emergency. How on earth could a country survive without its citizens having the right to life? But the famous four – then CJI A N Ray and Justices M H Beg, Y V Chandrachud and P N Bhagwati – capitulated. They gave primacy to selfpreservation over preservation of citizens’ life.
Under tremendous political pressure and threat, Justice H R Khanna held his head high to record a dissent note saying right to life could never be suspended. He stood tall among the five, and is still standing tall in court number two of the Supreme Court. Khanna too was a product of the same system which had appointed the other four. Khanna valued life. The rewards of capitulation went to Justice Beg, who was appointed CJI by the Indira regime. If the government thought of humiliating Khanna by superseding him, it failed. He tendered his resignation. Khanna showed that a man’s character shines brightest in times of pressure and adversity.
The SC realized this six years later and spoke out in S P Gupta case [1982 (2) SCR 365].
“Judges should be stern stuff and tough fire, unbending before power, economic or political and they must uphold the core principle of rule of law which says ‘be you ever so high, the law is above you’,” it had said. Immortal words penned more than three decades ago, but seldom practiced.
Whatever process a political system devises for appointment of judges, it would lose its efficacy if it is manned by people who do not put country over self and place integrity above politics and posts.
As president of the Constituent Assembly, Rajendra Prasad, who went on to become the first President, had warned of this while moving for adoption of the Constitution in 1949.
He had said, “Whatever the Constitution may or may not provide, the welfare of the country will depend upon the men who administer it. If the people who are elected are capable and men of character and integrity, they will be able to make the best even of a defective Constitution. “If they are lacking in these, the Constitution cannot help the country, After all, a Constitution, like a machine, is a lifeless thing. It acquires life because of the men who control and operate it. And India needs today nothing more than a set of honest men who will have the interest of the country before them.”
Seniority, government pressure: before and after 1993/ 1998
Lack of seniority was an expansive ruse on the NDA government’s part to return the recommendation for Justice K M Joseph’s appointment as a Supreme Court judge to the collegium for reconsideration. Since the SC came into existence in 1950, each and every Chief Justice of India, whether singularly till 1993 or collectively as part of the fivemember collegium, had given scant importance to ‘seniority’ while recommending the name of an HC judge or a chief justice for appointment to the SC.
In this column, we had mentioned how Y V Chandrachud, the CJI with the longest tenure of seven years, had expressed frustration with the Union government which always used ‘delay’ as a weapon to stall appointments recommended by the CJI.
P N Bhagwati became CJI on July 12, 1985, after being the seniormost judge for seven years behind Chandrachud. Nearly a year later, the sanctioned strength of the SC was increased to 26 from 18, both inclusive of the CJI, despite opposition from Bhagwati.
Bhagwati faced one of the most difficult tenures as CJI with regard to appointment of judges. Rajiv Gandhi government’s law minister A K Sen pressed Bhagwati to accept appointment of Delhi HC CJ Prakash Narain as an SC judge. Bhagwati refused and threatened to resign if Narain was forced on him.
Bhagawati wanted Bombay HC judge P B Sawant, who was a leader of the PIL movement in Maharashtra, in the SC. Sawant was eighth in seniority in Bombay HC. Bhagwati’s proposal was opposed by Bombay HC judges and advocates. Senior judges threatened to resign and conveyed this through the governor to then President Zail Singh. Sen asked and Bhagwati agreed to withdraw the proposal. Sawant made it to the SC four years later in 1989.
“Only five of the dozen recommended during Bhagwati’s 17-month tenure as CJI were accepted. For a man who wanted to redefine the court’s mission and was eager to bring to Delhi men who would either share his goals or would not stand in the way, Bhagwati’s inability to gain approval for his choices was very disappointing,” wrote George H Gadbois, the legendary researcher on
SC and its judges. Bhagwati told him that his experience with government regarding appointments was “absurd and humiliating”.
On the eve of his retirement, Bhagwati said, “I cannot help saying that the non-appointment of judges to the Supreme Court for several months has operated as an act of cruelty to the existing judges who are carrying an intolerable burden.” When he retired on December 21, 1986, there were only 14 judges against a sanctioned strength of 26.
R S Pathak, who succeeded Bhagwati as CJI, faced difficulty in getting names cleared for appointment as SC judges. For nearly a year in 1988, there were no appointments as the government just sat on recommendations. Exasperated by the long delays, an SC bench of Justices R N Misra and M N Venkatachaliah (as reported in TOI on November 18, 1988) set a December 7, 1988, deadline to fill up vacancies. The bench said if the government failed to meet the deadline, “entire record about such recommendations must be submitted to the court for scrutiny”. The threat worked. S R Pandian, K N Saikia, K T Thommen, A M Ahmadi and Kuldip Singh took oath on December 14, 1988. So, delaying appointments is not a new trick that the NDA government has discovered.
I have watched the SC and its judges closely since 1998. It is still a mystery why some judges took more than 16 years as an HC judge to become Supreme Court judge while some took less than 10 years to reach the apex court.
Let us examine past CJIs since 1998. Justice A S Anand served the longest — 16 years and five months — as HC judge before being appointed to the SC. Those who served more than 15 years in HCs before coming to the SC are B N Kirpal, Altamas Kabir and Dipak Misra. In the category of serving more than 14 years as HC judge are S P Bharucha, K G Balakrishnan, R M Lodha and T S Thakur.
In the over 13 year category are V N Khare, Y K Sabharwal and H L Dattu. While G B Patnaik and S H Kapadia served a little over 12 years as HC judges before getting appointed to the SC, P Sathasivam and J S Khehar were luckier as they became SC judges after serving 11 years and some months as HC judges. The luckiest among all was S Rajendra Babu, who made it to the SC after serving 9 years and seven months as HC judge.
When Dattu was appointed as an SC judge, his seniority in the all-India list of HC judges was 39th which means he superseded 38 HC judges. Similarly, Lodha superseded seven HC judges in getting to the SC. In a pool of over 1,000 HC judges, nearly 50 are always in the race for getting appointed as SC judges.
A sitting judge said, “The race is so competitive that even the best HC judges need some kind of help, either a godfather in the collegium or a bigwig in the government.”
This makes me recall what CJI Anand had said in December 1999. Several recommendations from the collegium were pending with then President K R Narayanan, who was refusing to sign warrants of appointments. When Anand went to persuade the President, Narayanan bluntly told him that he would not approve appointments unless the collegium recommended Justice K G Balakrishnan’s elevation to the SC. The collegium could delay recommending Balakrishnan’s appointment to the SC by eight months, long enough to curtail his tenure as CJI to three and a half years.
When the selection of judges is opaque, arbitrary and smacks of favouritism, there is enough room for the executive to put a spoke even on a ground as frivolous as ‘seniority’.
1993 and 1998: The collegium system begins
Centre will amend Constitution to scrap collegium
Dhananjay.Mahapatra @timesgroup.com New Delhi:
The judge-appointing-judge system was devised by the SC through two judgments in 1993 and 1998.
There is ambiguity vis-a-vis the constitutional provisions on the appointment of judges and the present practice.
Two articles provide that the executive, through the President, would have primacy in appointment of judges. This is how it was till 1993, when a constitution bench of the Supreme Court held that the CJI would have primacy in appointment of judges.
Article 124(2) says, “Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and the high courts in the states as the President may deem necessary for the purpose...“
Apex court's judgments stripped exec of any say in judge selection
Article 124(2) of the Constitution also provides that “in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted“. For appointment of a high court judge, Article 217(1) mandates the President to consult the CJI, governor of the state and chief justice of the HC.
Five years after a Constitution bench of the Supreme Court held that the CJI would have primacy in appointment of judges, in 1998, another Constitution bench judgment stripped the executive of any significant say in the appointment of judges to constitutional courts by devising the CJI-headed collegium system.
The scheme, which has been called judicial usurpation by others but justified by judges by invoking judicial independence, has lately been under the scanner for opaqueness.
So much so that former CJI J S Verma, author of one of the judgments by which the judiciary conferred upon itself the right to appoint judges, sought a review.
Efforts of the executive to do away with the collegium system began under UPA but failed to fructify. While in opposition, BJP supported the move but demanded that the Judicial Appointments Commission, which is proposed to select judges, should be fortified with a constitutional amendment in view of a likely challenge in judiciary .
It reiterated its support for JAC after coming to power, retired SC judge Markandey Katju about a former CJI giving in to political pressure to extend the tenure of a “corrupt“ judge is likely to provide fresh justification for its plans.
The Judicial Appointments Commission Bill, 2013 proposes replacing the collegium with a six-member panel headed by the CJI and comprising two SC judges, the law minister and two eminent citizens as its members.
The bill provides for selection of eminent citizens through another high-level committee comprising the Prime Minister, the CJI and the leader of opposition in Lok Sabha.
A parliamentary standing committee examined the bill and recommended that the JAC panel, headed by the CJI, should be a seven-member committee instead of six as proposed. It had suggested that three eminent persons be included in the panel instead of two proposed in the bill, with one of them either a woman or from the minority community or from SC/ST community.
2014: Collegium system ends
BENCH PRESS Dec 28 2014
The 21-year-old system of judges appointing themselves was scrapped in 2014, sparking fears of a decline in judicial independence On the historic day of May 16, 2014, when BJP became the first party in 30 years to win a clear majority in national elections, there was another significant development. It was the Supreme Court judgment passing strictures on the Gujarat government -specifically the home minister, who was Narendra Modi himself -while acquitting all the six accused for the Akshardham terror attack which had taken place barely six months after the post-Godhra riots. As it happened, within three months of the Akshardham judgment, the government pushed through a constitutional amendment stripping the judiciary of its “primacy“ in appointments to the SC and high courts.The 99th constitutional amendment Bill and the accompanying legislation, the national judicial appointments commission Bill, are set to dilute the powers that the SC appropriated for itself and the high courts through a controversial reinterpretation of the Constitution in 1993.
The new system of judicial ap pointments, which has restored the executive's say in the matter and opened up the process to two “eminent persons“ from outside, will come into force when at least 15 state assemblies endorse this far-reaching change. In place of the collegium consisting only of judges, the commission will have judicial and nonjudicial members in equal measure.Besides the Chief Justice of India (CJI) and two senior SC judges, the commission will have the law minister and the two eminent persons nominated by a panel consisting of the Prime Minister, CJI and the opposition leader in the Lok Sabha.
Though several from the opposition ranks and the bar have attacked it as an erosion of judicial independ ence, the circumstances were propitious for the government to make a strong case for doing away with, what has long been reviled as “a selfperpetuating oligarchy“. The credibility of the judiciary had been hit by a series of scandals -concerning probity and sexual misconduct -even prior to the formation of the Modi government.
The first clash under the new dispensation was on the collegium's recommendation to ap point senior advocate Gopal Subramanium to the SC. Departing from the practice of going by IB reports, the govern ment blocked Subrama nium's candidature on the basis of an adverse input from the CBI. This provoked a controversy as it was seen as a politically motivated move to keep away Subramanium on account of his role as amicus curiae in the Sohrabuddin fake encounter case. It was on his report that the SC had ordered a CBI probe leading to a charge-sheet being filed against Gujarat police officers as well as Amit Shah in his capacity as minister of state for home.
But the next flashpoint helped the government gain a moral edge over the judiciary. It was a blog written by former SC judge Markandey Katju alleging that, when he had been chief justice of the Madras high court, his attempt to get rid of a corrupt judge had been thwarted by then CJI, RC Lahoti. Detailing a murky sequence of events, Katju wrote that despite receiving an adverse report from the IB, Lahoti gave in to pressure from the Congress-led coalition government which in turn wanted the corrupt judge to be spared at the instance of its ally DMK. Though Lahoti denied this, Katju's blog put the judiciary on the defensive as it was evidently based on inside knowledge.
Katju went on to write that in response to another complaint of his against an Allahabad high court judge, the then CJI, SH Kapadia, had ordered tapping of telephones. Kapadia too denied Katju's contention.A day after Kapadia's denial on August 11, the then CJI, RM Lodha, erupted in court saying that there was “a misleading campaign against the judiciary to bring it into disrepute“. The provocation was a petition questioning the reported elevation of a Karnataka high court judge, KL Manjunath, as chief justice of the Punjab and Haryana high court despite the objections raised by an SC judge. The government's decision to return Manjunath's file underscored the fragility of the collegium system.
The succession of such events was enough for the government to garner enough support in both Houses to make the long-awaited breakthrough on judicial appointments. There was an interesting epilogue to this institutional battle, a month after passage of the Bills. A Constitution bench headed by Lodha stopped an executive intrusion into the judicial domain by striking down the national tax tribunal Act 2005. But the growing strength of the executive in 2014 has triggered fears of a parallel decline in judicial independence.
Collegium, NJAC and lobbying by retired judges
The Times of India, June 6, 2016
Presence of the law minister in the judge-domi nated National Judicial Appointments Commission (NJAC) was a red rag to the Supreme Court, which could smell the possibility of executive-political influence in the selection of judges to constitutional courts. It struck down the NJAC and said, “We are of the view that consequent upon the participation of the Union minister in charge of law and justice, a judge approved for appointment with the minister's support may not be able to resist or repulse a plea of conflict of interest, raised by a litigant, in a matter when the executive has an adversarial role.
“In the NJAC, the Union minister in charge of law and justice would be a party to all final selections and appointments of judges to the higher judiciary . It may be difficult for judges approved by the NJAC to resist a plea of conflict of interest (if such a plea was to be raised, and pressed), where the political-executive is a party to the lis. The above, would have the inevitable effect of undermining the independence of the judiciary .“
The SC wanted the process for selection of judges to be handled by the collegium of judges headed by the Chief Justice of India to maintain the independence of judiciary. It meant to say that if a a judge is lobbying for elevation to the SC, or if an advocate is lobbying for appointment as an HC judge, then let the lobbying be confined to the judiciary .
In such a judge-centric selection process for appointment of judges to the SC and HCs, one would expect that independence of judiciary would remain unscathed, being insulated from executive-political influence. And it is a natural corollary that products of the collegium system, after discharging their function as judges for years in complete isolation from the executive-politicians, would maintain a high degree of aloofness from the politicians.
The reality is very different. It has not changed a bit from what was in vogue in the 1980s, during the pre-collegium days. The NJAC judgment itself extracts a parag raph: “It appears that the government headed by (then) Prime Minister V P Singh had stalled appointments of 67 persons recommended by the chief justices of various high courts. Charges were fre ely traded against each other by the constitutional functionaries who are part of the appointment process of the constitutional courts. It appears that a law minister for the Union of India complained that state governments were trying to pack high courts with their `own men'.“
Who were these `own men' of the state governments? Have the `own men' not been appointed as judges of constitutional courts in the last two decades? The instances are plenty and talked openly in court corridors.One test of this `own men' is the way they lobby with the executive-politicians for post-retirement rehabilita tion in posts reserved for retired judges.
One such glaring example is of a recently retired HC chief justice, who was recommended by the CJI for an appellate tribunal. The government turned it down citing “adverse inputs“ against the ex-CJ. Having failed to secure a post-retirement tribunal post, he went to a political party and convinced it to recommend his name to the Centre for appointment as the head of a state human rights commission. But the tragedy with him is that the state HRC was yet to be constituted and the matter is pending before the SC.
During the hearing of the case, the CJI-headed bench was repeatedly telling the Centre that the national capital must have a human rights commission. It even commented that the Delhi government jumped the gun in recommending the name of a former HC CJ as its chairperson even before the commission was set up. Let us apply the test that was applied by the SC to quash NJAC. It was merely because the executive had a symbolic polluting presence in NJAC through the law minister and the apex court felt this apprehension of pollution was enough to endanger independence of judiciary .
The tribunals and the human rights commissions too adjudicate cases, at their very raw stage, involving the government and its functionaries. As per the SC test, those who head these tribunals and SHRCs must remain independent, which they are supposed to remain being products of the collegium system of selection of judges.
But many retired judges visit the law minister and other Union ministers to land one of these posts, for which the CJI still recommends the names but the government has the option of scotching it on grounds of integrity . The recently retired HC CJ sometime back visited a Union minister to placate him and get the desired post.
Judicial independence is not a factory produce. Uniformity of this rare trait in every judge cannot be achieved whether the executive selects them or the collegium.It is a personal trait which depends solely on the individual's character and the grooming he got in the judiciary .
2014: Panel to pick judges
Jan 01 2015
The Supreme Court collegium system of appointing judges to the apex court and high courts got a burial with President Pranab Mukherjee giving his assent to the Judicial Appointments Commission Bill .
The bill has already been ratified by at least 17 states and many more are in the process of doing so, said a senior law ministry official. It is mandatory for a constitutional amendment bill after it is passed by both Houses of Parliament to be ratified by at least half of the states. This brings to an end a system which the apex court had put in place through a judgment in 1993 to do away with the earlier practice of the government appointing judges.
The process of replacing the collegium with a panel was initiated during the first NDA government through a bill in 2003 but it was never taken up by Parliament. After Modi took over, Ravi Shankar Prasad, law minister in the first NDA government, initiated the NJAC bill and pursued political parties to evolve a consensus. The government will shortly notify the new Constitutional amendment replacing the SC collegium with the National Judicial Appointments Commission (NJAC). After the notification, the process of setting up of the NJAC will begin as provided under an enabling legislation which has been passed by Parliament along with the Constitution amendment bill.
The enabling NJAC bill provides for a six-member commission headed by the chief justice of India and comprising two senior SC judges as its members besides two eminent persons and the law minister. The two eminent persons in the commission will be appointed by a panel comprising the CJI, the Prime Minister and the leader of the largest opposition party in Lok Sabha. The NJAC also has provision for a veto where it provides that no name opposed by two or more of the six-member body can go through. The two eminent persons will have a tenure of three years and one of them would be from one of the following categories: scheduled castes, scheduled tribes, women or the minority community .
After the NJAC is set up, a name recommended for appointment as judge to the SC or high courts can be returned by the President for reconsideration. Though an initial recommendation to the President for appointment can be made by a 5-1 majority , this would not suffice to re-recommend the same name.
If a name is returned for reconsideration, the committee can reiterate the name only if there is unanimity among the members after reconsideration.
NJAC Act: Can CJI decline to be part of a constitutional process?
Apr 28 2015
Can CJI decline to be part of a constitutional process?
Can the Chief Justice of India refuse to participate in a process to make functional the new mechanism for judges' appointment mandated by a constitutional amendment and the NJAC Act, enacted by Parliament and ratified by 20 states?
The Centre termed CJI H L Dattu's decision to abstain from selection of two eminent persons to make the sixmember NJAC functional as “unconstitutional“. Attorney general Mukul Rohatgi said the oath taken by the CJI prohibited him from abstaining from the meeting comprising himself, the PM and the leader of opposition.
The Third Schedule of the Constitution provides the format for the CJI's oath, the relevant portion of which reads, “I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India... and that I will uphold the Constitution and the laws.“
With the AG declaring the situation a “constitutional stalemate“, a five-judge bench headed by Justice J S Khehar attempted to find a way out of it and sought views from senior advocates Fali S Nari man, K K Venugopal, K Parasaran and Harish Salve.
Venugopal and Parasaran said it was constitutionally impermissible for the CJI to decline participating in a process which was mandated by the Constitution. They said the provision, though under challenge, had not been stayed by the SC despite hearing it for days together.
Oct 2015: SC strikes down NJAC Act
The Times of India, Oct 17 2015
Dhananjay Mahapatra & Amit Anand Choudhary TNN
SC strikes down law giving govt say in picking judges Rift widens as NJAC Act declared `Unconstitutional'
Fears Political Meddling, Curb On Judicial Independence
The Supreme Court struck down the National Judicial Appointments Commission (NJAC) and ordered revival of the SCscripted two-decade-old `judges-selecting-judges' collegium system, rebuffing a unanimous Parliament decision to bring transparency in appointment of judges and potentially setting the stage for a confrontation between the executive and the judiciary . A five-judge bench, by a 4-1 majority declared the 99th constitutional amendment and the consequent legislation NJAC Act as unconstitutional on the ground that the NJAC had the law minister and two eminent persons as members who could join hands to reject the proposals of the judiciary , represented by the Chief Justice of India and two seniormost SC judges. Under the NJAC, any two members can veto a proposal.
The court held that the constitutional amendment and NJAC was a sure recipe for political meddling and executive interference in judi cial independence, which was part of the inviolable basic structure of the Constitution.
However, each judge acknowledged that all was not well with the collegium sys tem. The bench asked the government and petitioners to suggest in writing how to improve the system. Justices J S Khehar, Madan B Lokur, Kurian Jo seph and Adarsh Kumar Goel were unambiguous that inclusion of a politician (law minister) in NJAC was fraught with the danger of serious interference with the independence of judges.They recalled how the Indira Gandhi regime in the 70s had advocated appointment of `committed' judges.
Justice Chelameswar struck the lone dissent note, recalling the infamous ADM Jabalpur case of 1976 when the apex court had declared that right to life could be suspended during Emergency and said, “In difficult times, when politi cal branches cannot be counted upon, neither can the judiciary .“
However, the other four judges were convinced that the NJAC would be a disaster for the independence of judiciary and the justice delivery system as a whole.
Justice Khehar, in his 440-page judgment, made light of the fact that Parliament had unanimously backed NJAC. He said for judicial scrutiny of the constitutional validity of a law, it was inconsequential whether it was passed with a waferthin majority , brute majority or unanimity . On inclusion of the law minister and two eminent persons in the NJAC with any two members empowered to veto a proposal mooted by the CJI and two senior-most judges, Justice Khehar said it breached the primary mandate of the Constitution to give primacy to the CJI in appointment of judges.
He and Justice Lokur faulted the inclusion of the law minister in the NJAC, saying the government was the biggest litigant and, hence, participation of its representative in NJAC would render the justice delivery system suspect.
The court said the minister's participation could raise the “conflict of interest“ handicap against those judges from hearing cases against the government.
SC order greatly flawed: Justice Shah
Justice A P Shah, former chairman of the Law Commission and exchief justice of Delhi High Court said the Supreme Court judgment which struck down the National Judicial Appointments Commission (NJAC) was “greatly flawed and deserving of harsh criticism“.
Justice Shah, who was speaking at a discussion on `appointment of judges, balancing transparency , accountability and independence of the judiciary', said the idea of the NJAC was a “very good one“ and while there were some de ficiencies, they could have been read down.
“It is disturbing that the apex court was comfortable that judicial independence would be safe in the collegium system,“ Justice Shah said, observing that the constitution bench didn't offer any real alternative while striking down the NJAC.
Justice Shah questioned the third judges' case of 1998 which became the basis for the collegium system assuming primacy in appointment of judges to the higher judiciary. “The judgment in the third judges' case lacked any detailed textual or normative reasoning, and read more like a policy brief. There was no safeguard against arbitrariness, no mechanism to gather data, and no criteria for selection. The system was ad hoc and shrouded in se crecy,“ he said.
He recalled how the collegium led by Justice M M Punchhi as CJI in January 1998 gave the go vernment an ultimatum to appoint all judges recommended by his collegium after the government rejected some names. The executive protested by seeking a presidential reference on certain `dicta' expressed in the second judges' case. Though the second judges' case gave primacy to the collegium in case of disagreement, it did not give the CJI absolute power. It said the President could reject the CJI's opinion in exceptional circumstances.
“This led to the Special Reference No.1 of 1998, also known as the third judges' case, which held that consultation would mean consent of the CJI. The decision presumed that the primacy of the CJI was an established position of law, but provided no reason for this presumption,“ Justice Shah said.
He said the collegium system lacked transparency .
November 2015: SC approves a revised collegium
The Times of India, Nov 20 2015
Revived collegium to go ahead with appointment of judges: SC
The Centre told the Supreme Court that it would not formulate the draft Memorandum of Procedure (MoP) on the functioning of the collegium system for “judicial vetting“. It instead suggested that the task of reforming the system of appointment of judges should be left to the government, a plea which was rejected by the apex court. Afive-judge constitution bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel went ahead with the proceedings to explore ways to make the collegium system more transparent and accountable as it concluded the hearing. The bench clarified that the now revived collegium system can go ahead with the appointment process for judges in higher judiciary which has been in limbo for almost one year after the National Judicial Appointments Commission (NJAC) was brought in force and vacancies in high courts shot up to 40%. The bench is likely to pass an order suggesting measures to reform the system after the Centre refused to place the draft MoP to be followed by the collegium for appointment of judges incorporating the suggestions given by people from different walks of life.
A day after the apex court asked Attorney General Mukul Rohatgi to draft MoP and place before it within 15 days, he told the bench it is exclusively an executive function of the government in consultation with the Chief Justice of India and it cannot be subjected to “judicial vetting“.
“Memorandum is an executive document. There is no reason for the court to see what is there in MoP .Leave it for the government to frame it in consultation with the CJI,“ he said.
“Suggestions are already there. The court can also give its suggestions and the job of the court comes to an end. The government would work out on MoP . It is unnecessary burden being taken by the court. It is not possible that the draft prepared by government in consultation with the CJI and approved by the Prime Minister be vetted by the court,“ he said.
The AG said the role of CJI would finish if MoP is decided by court and pleaded that the bench should refrain from venturing into the area.
The bench, however, said there are gaps in the present MoP due to which the judiciary is facing problems and there is no transparency in appointment of judges. It said those gaps should be filled up by framing a new memorandum.
The bench then went ahead and concluded the proceedings noting down various suggestions given by lawyers on reforming the “opaque“ collegium system. The constitution bench had taken the unprecedented step of inviting views of general public for improvement of the collegium system which has been widely criticised for being non-transparent. The SC has taken up the task to improve the collegium system after striking down the National Judicial Appointments Commission, terming it unconstitutional.
2016, June: Govt repeats `no' to collegium's pick for HC CJ
The Times of India, Jun 06 2016
Govt repeats `no' to collegium's pick for HC CJ
In a first, the government has rejected a recommendation of the Supreme Court collegium for appointment of a high court chief justice for the second time. This comes at a time when the government and judiciary are locked in a standoff over certain clauses in the Memorandum of Procedure that will guide appointments to the higher judiciary.
The collegium, comprising the four seniormost judges of the apex court and headed by the Chief Justice of India, had recommended a judge's name for appointment as chief justice of a prominent opposition-governed state. The government turned it down. The collegium reiterated its recommendation, which makes it binding on the government to appoint the judge in question.
However, the government has asked the collegium to reconsider its decision as at least two sitting SC judges have expressed reservations about the judge. The government is de termined to question the rationale of the collegium negating the views of its brother judges who expressed serious reservations about the elevation of a judge in view of his alleged questionable integrity , according to sources.
Two sitting Supreme Court (SC) judges, who are believed to have worked with the judge in question in their previous assignments at another high court, have written to the collegium saying the judge should not be elevated as chief justice.
The objections of the two SC judges were also forwarded to the government along with the recommendations.
One of the clauses in the government-drafted Memorandum of Procedure (MoP), which was on May 25 returned by the Chief Justice of India to the government rejecting almost all major suggestions, talks about merit being the prime consideration for all appointments to the higher judiciary.
Besides, the MoP suggests that the exclusive collegium, both in the SC and in high courts, must consult all judg es on putting together a list of suitable candidates before getting on to the shortlisting process.
The government had, in the draft MoP, also proposed to reserve the right to reject any recommendation of the collegium in the “national interest“ which too is believed to be one of the points of discord.
The government seems to be in no hurry to settle the MoP row even as it has decided to clear pending recommendations for appointment of judges to the apex court and high courts based solely on merit, using its own vetting mechanism. It has already fast-tracked appointment of at least 170 judges recommended by the collegium in the past three-four months, considering that at least 40% judges' posts are lying vacant in 24 HCs.
2017, March/ Judicial Appointment Procedure finalised
Ends 1-Year Impasse By Finalising Judicial Appointment Procedure
Overcoming serious differences within itself, as well as with the Centre, the Supreme Court collegium has finalised the memorandum of procedure (MoP) for appointment of judges to constitutional courts.
The issue had been a bone of contention between the ex ecutive and the judiciary for more than a year.
The collegium, headed by Chief Justice J S Khehar and comprising Justices Dipak Misra, J Chelameswar, Ranjan Gogoi and Madan B Lo kur, agreed to the contentious national security clause that the Centre had insisted upon as one of the grounds for de termining the eligibility of judges for appointment to the apex court and high courts.
TOI had reported in its edition on February 27 about the possibility of an understanding on the Centre's stance that “national security“ ought to be part of the criteria to determine eligibility for appointment as judges.
In another breakthrough, the apex court collegium dropped its reservation about setting up secretariats in the SC and each high court to maintain databases on judges and assist the collegiums in the SC and the high courts in selection of judges.
Sources said it was unanimously decided to set up secretariats in the apex court and each high court. The dispute between the collegium and the government had held up ap pointments to higher judiciary despite rising vacancies. Finalisation of the MoP , which will be sent to the Centre for approval and adoption this week, raises hopes of speedy filling up of vacancies in HCs, which are operating at below 60% of their sanctioned strength. In many HCs, court rooms have been shut because of lack of adequate number of judges.
This is hampering disposal of cases, which adds to the backlog.
“There were no other sore points except the national security clause and secretariat in the MoP that required resolu tion. The members of the SC collegium held seven meetings and unanimously finalised the MoP after debating each clause and sentence of the new MoP while keeping in view the provisions of the old MoP and the constitution bench judgment of October 2015,“ a source said. The source said the collegium agreed with the Centre on the national security clause on the condition that specific reasons for application of the clause were recorded. Other sources confirmed that the issue, one of the sticking points, was resolved “in the best possible way“.
A constitution bench headed by Justi ce Khehar in October 2015 had struck down the NJAC and in December 2015 had directed the Centre to frame a new MoP in consultation with the CJI, who was to act in accordance with the unanimous view of the members of the collegium. For the last one year, the draft MoP was getting tossed back and forth between the Centre and the collegium with both sides refusing to budge over their stated positions on the national security clause which ostensibly gave veto power to the government to reject a name recommended by the collegium for appointment as judge.
However, things started moving after Justice Khehar took over as CJI and the composition of the collegium changed, allowing it to meet the challenges head on.
Pro bono cases to help lawyers become judges
The Memorandum of Procedure for appointment of judges to the SC and HCs will include weightage given to lawyers who render free legal service to poor and the marginalised, law minister Ravi Shankar Prasad said.
The minister was speaking at the launch of a law ministry portal for pro bono legal services where lawyers who want to provide free legal services can register themselves on the web platform. These lawyers would then be grouped according to the cities and region and litigants can apply for their free services.
The minister also launched tele-law service, which will connect poor litigants with lawyers through video conferencing facilities. The services will be provided through common service centres (CSCs) set up by the government in around 1,800 panchayats in UP , Bihar, the north-eastern states and Jammu & Kashmir.Through the Nyaya Mitra scheme the government aims to reduce pendency in courts.
2017: SC collegium recalls judge nomination over graft
The Supreme Court collegium headed by Chief Justice of India (CJI) J S Khehar has recalled a re commenda tion for the appointment of an Allaha bad high court judge just before it was to be forwarded by the Centre to President Pranab Mukherjee for his assent
The intervention took place after the chief justice of the Allahabad HC, Dilip B Bhosale, acted on an Intelligence Bureau (IB) inquiry report that the Lucknow district judge in question and his associates had allegedly received large bribes to grant bail to former UP minister Gayatri Prajapati. Prajapati was arrested on March 15 after being on the run for more than a month following the registration of an FIR against him in a rape case. Though the SC refused to stay Prajapati's arrest when he pleaded “not to be arrested“, Om Prakash Mishra, additional sessions judge in a Lucknow court, granted bail to the three accused, including Prajapati, on April 25.
Disturbed by serious allegations against Mishra and some seniors involved in the bail order, Bhosale ordered an IB inquiry . The probe revealed the involvement of not just the POCSO judge but also the district judge of Lucknow and three advocates, all office-bearers of the bar. According to the Intelli gence Bureau (IB) report, all the five -two judges and three members of the Lucknow bar -acted in concert and conspired to ensure granting of bail to Prajapati.The confidential report said that the granting of bail was allegedly settled upon payment of a sum running into crores which was shared by the five.
Since the district judge in question was cleared by the SC collegium for elevation as an HC judge, chief justice of the Allahabad HC, Dilip B Bhosale, asked IB to re-verify the allegations.
A second check by IB strengthened the case as Bhosale was told that the “information given to him was accurate and actionable“ and there was no doubt on the involvement of the district judge in the transaction of “business“.
Prajapati had contested the 2017 Uttar Pradesh elections from Amethi on an SP ticket and lost. Police filed a chargesheet against him and six others last week in a Lucknow court for the gang rape of a woman and molestation of her minor daughter. The Allahabad HC had earlier stayed the bail order of the POCSO court granted to Prajapati and two others. The former minister continues to be behind bars.
Finalisation of MoP
Justice system is hurt by Delay/ Dec 2016
There are six wise men in the judiciary and the government -the CJI, the next four senior judges of the Supreme Court and the law minister. They are all over 62 years in age, with nearly four decades of professional experience in the field of law.
The five judges are in the SC collegium and in the past have headed collegiums in high courts. They perform the unenviable task of selecting people with honesty , competence and rectitude for appointment as judges of constitutional courts.
The law minister too has first-hand experience about selection of judges. In addition, he as a lawyer is aware of the manner of selection of judges and the lacunae in the system. He also has vast experience in handling politically sensitive legal cases.
In December 2015, a five-judge constitution bench headed by Justice J S Khehar, the next Chief Justice of India, took note of growing criticism of the opaqueness and arbitrary procedure adopted by the collegium and ordered redrafting of the Memorandum of Pro cedure (MoP) for selection of persons for appointment as judges. Almost a year has passed and the task has turned elephantine.
The five-judge constitution bench had its contribution in catalysing circumstances to make the task of finalising MoP an unenviable one. Earlier, the MoP was drafted by the government in consultation with the CJI. But the five-judge bench mandated that the government would redraft the MoP in consultation with the CJI, who had to convey the unanimous view of the collegium members. Unanimity has been eluding the six wise men for nearly a year. The draft MoP has been tossed between the executive and the judiciary a couple of times. But since the first week of August, it has been resting with the collegium. The five senior-most judges of the SC, including the CJI, have on a daily basis judicially advised and coerced warring litigants to sit across table to discuss and narrow down their differences. These five wise men are discovering a dark truth about life in the last one year -what is probably easy to sermonise while presiding over benches and armed with constitutional powers is not so easy when they themselves sit together to find common ground on MoP .
One wise man among the five in the SC has serious differences with the collegium's functional procedure.He says that views expressed by individual members, even if pertinent and worth considering, are brushed aside or summarily rejected by the majority . He stopped attending collegium meetings. Instead, he decided to pen down his views on the files after the four others dis cussed issues and recorded a decision. He says he is doing so to subject his recorded views to scrutiny if ever such an occasion arises.
We asked a majority of collegium members a simple question: Is it such a difficult task for six wise men to finalise transparent and uniform selection criteria for selection of judges to the SC and HCs? They said it was rather sad that such experienced people were finding it difficult to crystallise their views and reach common ground on this issue. How long will it take to finalise?
The law minister feels satisfied that despite non-finalisation of MoP , the government has appointed 120 judges to the SC and HCs, the second highest number since 1990. He says the government has sent the draft MoP to the collegium three and a half months ago. There is no response yet, he laments.The stagnancy on MoP does not augur well for the judiciary as an institution. More so, when nearly three crore cases are pending in the three-tier justice delivery system. What does not help is the vacancy of 500 judges in HCs and 5,000 in trial courts.
This grim scenario is threatening to envelop the justice delivery system that had long shed its swiftness.Instead of focusing on finding a solution to the stalemate, the CJI, the law minister and the attorney general were seen reminding each other about the constitutional `laxman rekha' for every organ of governance.
Democracy and judiciary are critically dependent on the oxygen called people's faith. Both must remove systemic blindfolds and work towards streamlining the judges' appointment procedure. The public is keenly watching the six wise men's experiments with an elephant called MoP .
Merit vs. seniority
The SC collegium's decision to deviate from seniority in recommending the elevation of Karnataka HC's Justice S Abdul Nazeer to the apex court is a hint that the Centre and the judiciary are narrowing their differences over the MoP. The MoP, drafted by the government and pending with the SC for over six months, seeks to give merit primacy over seniority in judges' elevation to the apex court. Justice Nazeer is fourth in ranking at the Karnataka HC. The government has cleared Nazeer's file along with that of four others recommended by the collegium for elevation to the SC. The others are chief justices Naveen Sinha, S K Kaul, Dipak Gupta, and S M Mallikarjunagouda of the high courts of Rajasthan, Madras, Chhattisgarh and Kerala.
Consensus on national security
The Supreme Court collegium is likely to come around to accept the Centre's stance that it can turn down names of judges recommended for appointment to the high courts and Supreme Court on grounds of national security on the condition that the reasons are recorded in writing.
Sources said the collegium would soon convey to the government its new stand, in what can clear the way for the early appointment of judges of high courts and the Supreme Court. The MoP might be finalised by the month-end, sources said.
The national security clause has been one of the trickiest in the memorandum of procedure (MoP) for appointment of judges which has been hanging fire since December 2015, when a five-judge constitution bench entrusted its redrafting to the Centre in consultation with the CJI.The draft MoP prepared by the Centre had been tossed to the collegium and back without much progress on the `national security' clause for the past year.
In a recent meeting, members of the SC collegium led by CJI J S Khehar decided that while the Centre can reject a person for appointment as SC or HC judge under the national security clause, it would have to records reasons in writing as to how a particular appointment would run afoul of national security .
==2017: SC collegium breaches MoP for HC picks== Abhinav Garg, SC collegium breaches MoP for HC picks, September 24, 2017: The Times of India
A few names cleared by the Centre for judicial appointments earlier this week indicate the Supreme Court collegium has been inconsistent in observing its own Memorandum of Procedure (MoP) drawn up in March to guide the appointment of judges to the higher judiciary .
The revised MoP had clear criteria, including age bracket, minimum income, and adequate number of reported judgments, to assess the suitability of a lawyer for elevation as judge. But barely a month after approving the MoP and sending it to the government, the collegium, in April, seemed to have disregarded or diluted some clauses in recommending names for appointment to the Andhra Pradesh and Telangana high court.
Interestingly , these parameters were inserted in the MoP due to a rare unanimity between the government and the judiciary in an otherwise bitterly contested document. Even now their is no agreement on the government having the right to reject a recommendation on national security grounds.
While it included the age criterion, the collegium ignored the clause to clear two names that would have otherwise been barred from consideration as they exceeded the upper age limit. Sources say the collegium also ignored that one of the candidates had literally no practice in the HC, much less any reported judgment, as he only practised in a district court.
These and some other points were flagged by the governments of AP and Telangana, TOI has learnt, when they objected to the recommendations first sent by the HC.
The state governments in its opinion also underlined that five of the six advocates recommended were either relatives or juniors of judges or among their close ones. One candidate declared in the resume that he had been the junior of a senior law officer who now happens to be a senior SC judge. The governments further highlighted the inadequate number of reported judgments to question the suitability of some of the nominees. For instance, one of the candidate filed only 91 cases in the past five years.
Last year, the government proposed fixed yardsticks for eligibility, saying it would help make appointments of lawyers as judges more transparent. In March 2017, the collegium agreed, as it included, for the first time, in the MoP a minimum and maximum age criteria for lawyers.
To be eligible, a lawyer should have attained the age of 45 years but shouldn't be above 55 years of age at the time of nomination. The new MoP also stressed that merit and integrity of the candidates would be the “prime criteria“ for appointment, while also taking into account other aspects such as considerable practice and minimum income of a lawyer.
Due to the objections raised by Telangana and Andhra Pradesh, the Centre sat on the SC recommendations while it made up its mind. However, as reported by TOI earlier, Justice J Chelameswar took a non-negotiable stand that unless the Centre took a decision on the recommendation for six appointments to the Telangana and AP HC, he will not take part in collegium meetings.
NJAC vs collegium: The debate decoded
The Hindu, December 14, 2015
The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts. Here is what you need to know about the row:
What is the NJAC?
The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.
What is the Collegium system?
The Collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges. However, it has no place in the Indian Constitution. The system was evolved through Supreme Court judgments in the Three Judges Cases (October 28, 1998)
Why is Collegium system being criticised?
The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court.
The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.”
A bunch of recent orders show why there's a dire need for verdicts written in simple English, without legalese
Recently , a Supreme Court bench set aside an eight-page Himachal Pradesh High Court judgment because it could not “comprehend the contents“. The case was about a tenant-landlord dispute. Here's an extract: “However, the learned counsel...cannot derive the fullest succour from the aforesaid acquiescence... given its sinew suffering partial dissipation from an imminent display occurring in the impugned pronouncement here at where within unravelments are held qua the rendition recorded by the learned Rent Controller…“
Aishwarya Bhati, the lawyer representing the tenant, told the court in jest that she would have to hire an English professor to interpret the judgment. “It had one entire page without a full stop,“ she recalls.
The aforesaid (sorry) instance points to the curious case of judicial writing in India which has left lawyers such as Bhati yearning for “a movement towards simple English in judgment writing“. Time and again, in Indian judgments, facts, reasons and decisions find themselves under obscure, verbal stampedes. “Innovative nuances of evidential inadequacies, processual infirmities and interpretational subtleties, artfully advanced in defence, otherwise intangible and inconsequential, ought to be conscientiously cast aside with moral maturity and singular sensitivity to uphold the statutory sanctity , lest the coveted cause of justice is a causality ,“ said the judgment of a high-profile political leader's corruption case last year. And a 268-page judgment on a criminal defamation case, contained phrases such as “exposits cavil“, “quintessential conceptuality“ and “percipient discord“.
Floridity isn't a new syndrome in legal writing. The late Justice V R Krishna Iyer -who would pepper his judgments with words like `jejune' and `logomachy'-was criticised by some and revered by many for his literary flourishes. The problem is “everyone wants to emulate Justice Krishna Iyer without realising that they first need a command over the language,“ says Mumbai-based lawyer Mrunalini Deshmukh. Various papers by Indian judges on the art of judgment writing insist on “brevity“ and “clarity“. “A judgment should unite reasoning and decision,“ says Upendra Baxi, professor of law at University of Warwick and University of Delhi. “It should reserve one-third of the space for arguments, one-third for what has been said in preceding cases and onethird for the decision.“ Last week, the SC remanded a case back to Rajasthan High Court after it found the judgment neither set out facts nor gave any reasons for the conclusions reached. “Nothing should be put below the carpet in the judgment,“ says 84-year-old Justice (retd) D R Dhanuka, who used to correct some of his own judgment drafts five times for improvements. Chiefly , a judgment serves two purposes, according to Justice (retd) P C Agarwal. “It is meant for the judge to safeguard himself against his own self (biases) and it lets the defeat ed party know why they lost,“ he says.
Needless to say, it must be easily understood by judges, lawyers and the layman. “The use of legalese must be restricted to the minimum,“ says Justice (retd) A S Aguiar, remembering the late Justice B Lentin of Bombay High Court as a role model for writing judgments. While lawyers themselves are guilty of using convoluted English, “they can still get away with it,“ says Bhati. “But judges shape important decisions.“
The plurality of language in India makes judgment writing in English difficult for some, points out SC lawyer Karuna Nundy. “There is the desire to sound knowledgeable, and it's this human impulse that must be resisted to create more certainty and clarity for those who must implement the law.“
Sometimes, the essence is lost in translation. Deshmukh, a family court lawyer, once came across a magistrate court judgment that said the husband would “beat beat beat“ his wife, a literal conversion of the Marathi phrase, “maar maar maarla“. “Judges should also be trained in the basics of language and articulation,“ feels Deshmukh. Institutes such as Bhopal's National Judicial Academy (NJA) train professionals in judgment writing.
“The idea of using big words to sound important owes to our society's “pre-modern hangup“, feels sociologist Dipankar Gupta, who finds judgments getting progressively longer since the 1980s. “To show how learned you are, you are expected to write a lot and go around in circles, even in examinations,“ says Gupta. To be sure, verbal indulgence in legal writing isn't an Indian phenomenon.Years ago, Yale Law School professor Fred Rodell had criticised law reviews saying they reminded him of “an elephant trying to swat a fly“.
Ultimately , neither style nor content should delay justice. “We should ask ourselves if we are losing track of the end consumer of justice,“ says Bhati, who realised the cost of verbosity when her tenant-client, a shopkeeper from rural Himachal, queried: “What was my fault?
How and when was the NJAC established?
The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014. Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.
Who will be in the NJAC?
It will consist of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination.
If politicians are involved, what about judicial independence?
The judiciary representatives in the NJAC -- the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through.
Arguments against ‘transparency’
Two months after the five-member collegium opted for transparency by unanimously resolving to upload its decisions on selection of judges on the Supreme Court website, signs of disquiet have emerged within the collegium on the width of transparency.
Two SC judges — Justices Madan Lokur and Kurian Joseph — have written to CJI Dipak Misra that making public the reasons for rejecting people’s candidature violated the right to reputation of those persons, who were either very senior judicial officers or advocates with substantial practice. The two said transparency in judges’ appointment was a welcome step but it could not be a tool to indirectly harm the reputation of those who failed to meet the fluid suitability criteria.
‘Making public the reason can be an adverse remark on judges’
Making public the decision to reject their names could be seen as an adverse personal remark on these judicial officers and advocates, Lokur and Joseph said.
The two judges also said there should be a discussion on the extent of transparency which was not articulated in the resolution.
Justice Ranjan Gogoi, who is also part of the collegium apart from the three and Justice J Chelameswar, seconded their arguments as he too believed that cases of rejected candidates should not be put up on the SC website to avoid unnecessary ignominy to them.
The collegium had adopted and signed a resolution on October 3 titled ‘transparency in collegium system’.
The CJI put up an agenda for the collegium’s consideration which read, “Decision on uploading of collegium’s resolutions with reasons, on each candidate for elevation as judge of high court, chief justice of HC or as judge of Supreme Court or transfer, on the SC website for ensuring transparency of collegium system.”
The resolution, which was unanimously adopted and signed by all five, read, “That the decisions henceforth taken by the collegium indicating reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the government of India, with regard to the cases relating to initial elevation to the HC bench, confirmation as permanent judge(s) of the HC, elevation to the post of chief justice of HC, transfer of HC CJ/ judges and elevation to the SC, because on each occasion the material which is considered by the collegium is different. The resolution is passed to ensure transparency and yet maintain confidentiality in collegium system.”
However, SC sources said it was unlikely that the collegium would go back on its first step towards infusing transparency in selection of judges, which has long been criticised as an opaque and arbitrary process. Sources referred to the five-judge bench order in the NJAC case on October 16, 2015, in which the SC had said, “The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks.”
One of the judges on the constitution bench had quoted Justice (retired) Ruma Pal, who had said, “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. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within thesystem.” On December 15, 2015, thesame five-judge bench had stressed on transparency in judge selection and mentioned posting the decisions on the SC website.
An SC sourcesaid, “Itwas a unanimous and collective decision of the collegium in consonance with the constitution bench judgment. Every collegium member signed it when the resolution was passed. It was for institutional transparency and yet to maintain confidentiality. Individual collegium members’ opinion about a person in the zone of consideration is never put up on the website.”
The collegium had adopted and signed a resolution on October 3 titled ‘transparency in collegium system’. The CJI put up an agenda for the collegium’s consideration which read, “Decision on uploading of collegium’s resolutions with reasons, on each candidate for elevation as judge of high court, chief justice of HC or as judge of Supreme Court or transfer, on the SC website for ensuring transparency of collegium system.”
Arguments against the collegium system
Justice Ruma Pal’s views, 2011
Article 124 of the Consti tution provides that the government will appoint judges in consultation with the Chief Justice of India. To make independence of judiciary meaningful, the Supreme Court in the 1990s gave a novel interpretation to Article 124 to mean that selection of judges was the sole responsibility of a collegium of judges headed by the CJI.
Nearly 20 years after the collegium came into being, Justice Ruma Pal, one of the most respected SC judges, spoke from the comforts of retirement in November 2011 to describe the process of appointment of judges to the superior courts as “possibly the best kept secret of this country“.
She had said, “Consensus within the collegium is some times resolved through a trade-off, resulting in dubious appointments with disastrous consequences for litigants and credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and lobbying within the system.“
Her stinging remarks were hailed by many . Most knew what was happening. But even the most successful lawyers feared to go public with their views. Criticism of the collegium system could prove professionally hazardous, they knew.
Some criticised Justice Pal for speaking out after retirement. They said it would have been better if she had said these things and attempted to improve the system while being a sitting judge, especially when she was part of the collegium.
Justice J Chelameswar did that while being a sitting judge and being part of the collegium. He drew “we knew this“ chuckles from many lawyers.Most retired judges and exCJIs agreed with him and lauded him for his bold attempt to let some sunlight into the collegium's secret chamber.
But Justice Chelameswar faced criticism from renowned lawyer Fali S Nariman who said, “If a judge in the collegium does not like the way it functions (for lack of transparency or any other), he can quit and then complain about why he quit. People would then understand him better.“
Did anyone understand Justice Pal and attempt to take her views forward? Nariman commands respect for what he is. He set high standards for himself and others by quitting as additional solicitor general in protest against imposition of Emergency in 1975.
By this “quit and criticise“ advice to Justice Chelameswar, Nariman could not have meant to convey that the collegium process was either transparent or foolproof. If Justice Pal was right, so is Justice Chelameswar. They merely attempted to give a loud message that all is not well within the collegium system, which is accountable to no one. Will this advice be akin to shooting the messenger? Nariman's integrity , honesty and standing in the bar is impeccable. Yet, a section of lawyers has a grievance that even the great lawyer does not adhere to the golden principle that kith and kin of a judge should not practice in the same court.Should he quit the profession just because his son is an SC judge? No, he should not, because we know in our hearts why Nariman deservingly walks around the court corridors with a “can do no wrong“ halo. He must remain in the system and be an example of an exception to the principle that “kith and kin of a judge should not practice in the same court“. Let us take another argu ment. Selection of representatives by the people to the highest chambers of democracy -Parliament and assemblies -was described by the SC in Association for Democratic Reforms case [2002 (5) SCC 294] as of “utmost importance for governance of the country“.
It had said, “For maintaining purity of elections and healthy democracy , voters are re quired to be educated and well informed about the contesting candidates.“ Upholding voters' right to know, it directed candidates to reveal their educational and criminal antecedents along with asset details.
To drive home the importance of voters, the SC had quoted Winston Churchill, who had said, “At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper; no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.“
Selection of judges for higher judiciary , the repository of citizens' rights, is equally cardinal for public faith in the judiciary . We can rephrase Churchill's words, “At the bottom of all tributes paid to the judiciary is the little man, walking into a little court, with a little case, and making a little argument to get a little relief. No amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the little man's faith in judiciary .“
Justice Chelameswar's recent views were acknowledged a year ago by the Constitution bench which struck down the NJAC. Instead of him quitting, let his views be the stepping stone to find ways to strengthen the little man's faith in the system that selects judges and determines the character of judiciary .
We must remember that if free and fair elections are at the heart of parliamentary system of governance, free and fair selection of judges can be said to be at the heart of a credible judiciary .
Collegium system has not worked well: SC, 2015
The Times of India, Jun 17 2015
The Supreme Court has acknowledged the collegium system of judges appointing judges, which Parliament has replaced with National Judicial Appointments Commission (NJAC), has not worked well, reports Dhananjay Mahapatra.“The (collegium) system is good, but the implementation has gone wrong,“ a fivemember SC bench said. P 11 Senior advocate Fali S Nariman, lead lawyer for petitioners questioning the constitutional validity of the National Judicial Appointments Commission (NJAC), was made to face his own bitter criticism of the Supreme Courtdrafted collegium system for appointment of judges. Former solicitor general T R Andhyarujina and additional solicitor general Tushar Mehta cited excerpts from Nariman's autobiography `Before Memory Fades' to drive home the point that not only had Parliament and 20 states ratified the NJAC to re place the collegium system but Nariman, the lead opponent of NJAC, too was against the collegium system.
Nariman was the counsel who argued for petitioner `Supreme Court Advocates on Record' in the 1990s, leading to formulation of the collegium system by a nine-judge constitution bench. Prior to the collegium system, the executive appointed judges in consultation with the CJI.
In his book, Nariman had devoted an entire chapter to express disappointment at the working of the collegium system. He wrote, “I would suggest that the closed-circuit network of five judges should be disbanded.“
Nariman was unperturbed by the opponents' remarks. He told TOI he had made his views clear to the SC during initial arguments against the NJAC in which the primacy of judiciary in appointment of judges has been erased. He said he still felt the collegium system had not worked well. But that did not mean that the present form of NJAC was a good sub stitute, he said.
Collegium system good but implementation faulty : SC
The Times of India, Jun 17 2015
AG submits list of bad appointments
During hearing of a bunch of petitions challenging the validity of the NJAC, the Centre and states have slammed the collegium's nontransparent and non-accountable manner of appointing judges to the Supreme Court and high courts. The attorney general even submitted a list of bad appointments to the five-judge Constitution bench hearing the matter.
“One is the (collegium) system itself. The other is the implementation of the system-provided procedure.The National Commission to Review Working of the Constitution headed by Justice M N Venkatachaliah had said when the collegium system was devised by the Supreme Court, it was hailed the world over as a unique and good system,“ the bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel said. “So, the (collegium) system is good, but the implementation has gone wrong. That does not mean the system is bad,“ the bench said in response to senior advocate T R Andhyarujina's argument that evolution of the collegium system was neither legally justified nor had worked satisfactorily . The court pointed out that the qualification for `eminent person' did not specify whether they should be Indians.“Can a foreigner be appointed as eminent person in NJAC?“ the bench asked.
Justice J Chelameswar’s dissenting judgment/ 2015
The Times of India, Oct 17 2015
Lone SC judge who batted for judicial appointments panel In his lone yet strong dissent judgment against the collegium system, Justice J Chelameswar said appointment of judges should not remain the exclusive domain of the judiciary . The govern ment and civil society members must have a say in it. Faulting the functioning of the collegium system, he said while it had no accountability, there were instances where it had failed. He spoke for an urgent need for re form in the system and lamented that SC didn't approve of the NJAC, which was a step in that direction.
“The nation has witnessed many unpleasant events connected with judicial appointments -events which lend credence to speculation that the system established by the Second and Third Judges cases in its operational reality is perhaps not the best system for securing an independent and efficient judiciary,“ he said.
Terming the collegium system non-transparent, he said correspondence between the government and CJI and records of the consultation process were some of the country's best-guarded secrets.
“Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process.Proceedings of the collegium were opaque, inaccessible to public and history, barring oc casional leaks,“ he said.
“The records are beyond the reach of any person, including the judges of this court, who aren't lucky enough to become CJI. Such a state of affairs doesn't either enhance the credibility of the institution nor is it good for the people,“ he said.
The judge said the judiciary couldn't claim to be the sole protector of people's right and referred to instances where the SC had failed to live up to citizens' expectation in preserving liberties.
To assert that the judiciary alone is concerned with the preservation of liberties and does that job well is a dogmatic assumption bereft of evidentiary basis. To 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“.
He said the fiasco created by the collegium in the appointment of Justice P D Dinakaran and appointment of a Madras HC judge were part of judicial records. There were many other cases when undeserving people were appointed judges.
“More instances were mentioned at the bar during the hearing to demonstrate not only the shallowness of the theory but also recommendations by the collegium have not necessarily always been in the best interests of the institution and the nation. It is not necessary to place on record all details, but it's sufficient to mention that the earlier mentioned two cases aren't the only examples of the inappropriate exercise of the power of the collegium,“ he said.
Justice J Chelameswar finds collegium procedure opaque/ 2016
In a stunning revelation, the Supreme Court's fifth-most senior judge, Justice J Chelameswar, told The Times of India that he has stopped attending meetings of the collegium headed by the Chief Justice of India as he finds its procedure “most opaque“, and the “majority gangs up“ to shoot down genuine objections against undesirable candidates being chosen to be judges of higher courts.
The collegium [in 2016] comprised CJI T S Thakur and Justices A R Dave, J S Khehar, Dipak Misra and Chelameswar. Breaking ranks with his colleagues in the collegium, which decides on the selection of judges to the SC and HCs, Chelameswar told TOI of his unhappiness over the entire process.
“I have written a letter to the Chief Justice informing him that I will not be participating in the collegium's meetings henceforth.The system of selection of judges is not at all transparent.No reason, no opinion is recorded. Just two people decide the names and come back to the meeting and ask for a yes or no. Can a judge of the Supreme Court or high court be selected in such a manner?“ he asked. If a known corrupt person is being considered for ap pointment as a judge of the Supreme Court and if one of the members of the collegium says he has evidence to back his opposition to his appointment, should such a person's selection be decided on the basis of majority or rejected on the basis of the merit of the evidence given by the single member of the collegium?“ “My experience shows at people gang up in the col that people gang up in the collegium and selections are done without anyone recording his view and the basis of that view. The outside world does not know what is happening inside the collegium. The inside world too does not know much. Two people sit and decide the names and then ask others to give their yes and no to the names,“ he said. “Are we doing anything good for the country through this selection process?
Should it not be on the basis of merit? What if a person who is opposing a name has the most valid grounds? Can such valid grounds be brushed aside by majority or through expression of yes or no“ -were a few of the many questions Chelameswar asked. He had found no answer for his questions within the system, forcing him to inform the CJI that he would no be longer available for collegium meetings. He would, however, continue to go through the files relating to selection of judges and record his views on them.
Justice Chelameswar was the sole judge to record his dissent against the collegium system and to support the National Judicial Appointment Commission (NJAC) as a better alternative while sitting on a fivejudge constitution bench last year. Justices Khehar, Madan B Lokur, Kurian Joseph and Adarsh Goel had struck down NJAC although Joseph had agreed with Chelameswar that the collegium was an opaque system.
So what had sparked the sudden outburst? Was it because certain undesired persons got selected by the collegium, TOI asked Chelameswar, to which he said: “I am not happy with the manner in which the collegium selects persons for appointment as judges.
It's been going on for 20 years, but that's no solace for me to keep silent. I am not on individual names. I am raising an issue at a much higher level. The question is, are we doing something good for the country?“
… judges selection based on impressions + transfers of HC justices lopsided/ 2018
Justice Chelameswar Questions Transfer Policy Of HC Judges, Calls For Debate On Elevation Criteria
Justice J Chelameswar, the seniormost judge in the Supreme Court after the CJI, has raised serious questions on elevation of high court judges to the SC, saying appointments were done on the basis of impressions rather than clear-eyed assessment of performance.
Speaking at a book release function in the Capital on Monday, Justice Chelameswar, who along with CJI Dipak Misra and the three seniormost judges is part of the collegium that appoints judges to the SC, also said that proceedings of the body should be maintained.
“Assessment of performance of high court judges is hardly done. Generally, impressions go as assessment,” Justice Chelameswar said while releasing the book ‘Appointment of Judges to the Supreme Court: Transparency, Accountability and Independence’.
Justice Chelameswar’s demand for recording of the collegium’s proceedings is in line with his dissenting order as member of the five-judge bench, which in October 2015 struck down the National Judicial Appointments Commission Act. The NJAC, which couldn’t see the light of day, was supposed to end the collegium’s monopoly in appointment of judges to the SC and HCs.
Justice Chelameswar said some assessment ought to be made either by the collegium or by the state before the collegium recommends elevation of a judge. “That would eliminate most problems.”
The SC judge also questioned the transfer policy governing HC chief justices, saying it had resulted in a lopsided situation where as many as four judges of some HCs ended up serving as chief justices at the same time, something which made each of them eligible for elevation to the top court and skewed representation. He also noted that the political class had for the last 35 years been united in standing by the transfer scheme. Justice Chelameswar favoured a debate whether the system should treat ‘all-India’ seniority of a judge rather than his or her tenure as chief justice of an HC as the criterion for elevation.
His observations are significant considering that the government has withheld the collegium’s recommendation elevating Uttarakhand HC Chief Justice K M Joseph despite the fact that he is the seniormost among chief justices of all HCs. The Centre has unofficially made it known that it is not in favour of Justice Joseph’s elevation as he is not the seniormost among serving judges of HCs.
The four judges who gave the majority verdict in October 2015 to strike down the NJAC Act had also acknowledged that all was not well with the collegium system.
In his dissent note, Justice Chelameswar recalled the infamous ADM Jabalpur case of 1976 when the SC had declared that right to life could be suspended during Emergency to observe, “In difficult times, when political branches cannot be counted upon, neither can the judiciary.”
3 ex-CJIs want transparency in SC collegium/ 2016
`Transparency Is Equally Important'
Three former Chief Justices of India said on Saturday that “time has come for transparency in the Supreme Court collegium proceedings for selecting judges“ and lent support to Justice J Chelameswar's unprecedented decision to stay away from collegium meetings because of their “opacity“.
The three ex-CJIs are K G Balakrishnan, P Sathasivam and R M Lodha.
Chelameswar faulted the collegium proceedings on many counts -non-recording of minutes of the meetings, including the dissenting voice on appointment of a judge; suppressing the merit of opposition by brute majority within the collegium and a facade of consensus on the recommended names. Transparency and consensus are needed in the Supreme Court collegium proceedings for selecting judges, three former CJIs have said in support of Justice J Chelameswar's unprecedented decision to stay away from collegium meetings. During their tenure as CJIs, they had never faced a problem in achieving consensus among members of the collegium, they said.
Each believed in free and frank discussion on merits and demerits of a person in the zone of consideration and they said names were recommended only when there was a consensus. Justice Sathasivam, now governor of Kerala, told TOI that transparency as well as consensus are two crucial aspects of any selection process, more so when persons are selected for appointment as judges of the Supreme Court or the high courts.
Justice Lodha said smooth functioning of the collegium depends on two crucial aspects -the head of the institution (CJI) and the attempt to find consensus. “It takes time to find consensus. Before placing a name before the collegium, adequate material on antecedents, merit and capability of the person must be collected from every possible source. There should be free and frank exchange of views. If consensus eludes a particular name, it should not be recommended on the basis of majority ,“ he said.
Reflecting on Justice Chelameswar's opacity charge against collegium, Justices Sathasivam and Lodha favoured recording of views of the collegium members on names considered for appointment of judges to improve transparency . Justice Lodha said: “The views of members of the collegium were not recorded earlier because every member trusted the other. They had trust in each other. With pas sage of time and with all that is happening around, transparency is the need of the hour.“ Justice Balakrishnan agreed that there should be transparency and consensus among the collegium members prior to recommending a person for appointment.But he was against recording of collegium members' views on a person in the zone of consideration.
“Overwhelming majority of the persons considered for appointment to the Supreme Court are all chief justices of high courts. Members of the collegium may have an adverse view on a CJ of the HC and he is entitled to express it in the collegium meeting. But to record it is to give credence to a view as gospel. Moreover, if these records get leaked, the person officiating as HC CJ would find himself in a piquant situation. How can the views of collegium members expressing an unverified charge against a sitting CJ be recorded without giving the latter a chance to rebut? This will also be against principles of natural justice,“ Justice Balakrishnan said.
Justice Balakrishnan said: “The collegium is not a departmental promotion committee to record every charge against a person. Collegium is a body comprising senior-most Supreme Court judges who are responsible persons. If there is no consensus on a name, that person should never be recommended for appointment.“
But Justices Sathasivam and Lodha differed with Justice Balakrishnan on recording the meetings. “Transparency is important for the health of a system, be it collegium or any other selection process. Hence, recording views of collegium members is essential. Views of each member on a particular name in zone of consideration must be recorded and should form part of the record sent to the government along with the recommendation,“ Justice Sathasivam said. “However, consensus on a name recommended for appointment as judge is more important than transparency . If there is a single valid dissent to a name, that person should not be recommended for appointment as a judge,“ he added.
Collegium should make public its reasons: Justice Ruma Pal supports Justice Chelameswar
Former SC judge Justice Ruma Pal tells Arghya Sengupta why she believes there's merit in Justice Chelameswar's insistence on the collegium making public its reasons for selecting someone as a judge
Justice Ruma Pal, a former Supreme Court judge, says the collegium was formed to ensure transparency and that primacy of judges cannot be a cover to duplicate the secrecy that characterised previous appointments by the executive. Excerpts...
Your view on Justice J Chelameswar's comments on the need for transparency in the collegium
Justice Chelameswar is asking for nothing more than what was laid down in the Second Judges' Case (1993), that reasons for decisions to appoint need to be recorded. One reason the collegium was set up was to ensure the process could be more transparent. Recording reasons is fundamental to transparency . This is the standard the judiciary requires of others. Justice Chelameswar is justified in saying that it should follow the same standard.
What urgent reforms does the collegium need?
Most important is the laying down of objective criteria and recording of reasons in accordance with such criteria. While there is subjectivity in any selection, recording of reasons, as per established criteria, is a necessary safeguard to ensure sub jectivity isn't a guise for a decision on extraneous considerations. I don't believe the laying down of reasons is antithetical to the cause of those not selected.A person may be competent to be an competent to be an HC chief justice but not be ready to lay down the law by becoming an SC judge. I see no reason why such a person's non-selection would reflect on his ability to function as an HC chief justice, as long as no negative remarks are made about him.
Does the prospect of elevation to the SC affect the attitude, behaviour, manner of judging of HC judges?
Whether it does or doesn't isn't the issue. The issue is that it can. If one is inclined that way , one would pass a judgment that wouldn't rock the boat, so that one's chances of elevation to the SC isn't jeopardised.The solution to the problem, which will remain irrespective of whether the power of appointment is with the collegium or the government, is systemic. The retirement age difference of HC and SC judges must go. The original reason for providing additional tenure to SC judges (up to 65 years) was to incentivise fine HC judges to leave their hometowns for Delhi. This reason is no longer valid. If the age difference is removed, the expectation of looking towards the SC for additional tenure will substantially reduce.
Could the NJAC have rectified some of these ills?
I've always been in favour of a judicial commission. This is neither an original thought, nor a recent one. Justice Bhagwati in the First Judges' Case (1981) said so. Justice D A Desai, as Law Commission chairman in 1987, said so. Chief Justice Venkatachalaiah reiterated it in the report of the National Commission to Review the Working of the Constitution. None of them is a member of government. The only difference between the NJAC and these enumerations was over who would be part of the commission. The SC has often made the Law Commission's recommendations binding in other cases. It should have considered this history more seriously in the NJAC case too. Safeguards could have been incorporated where it felt judicial independence might be compromised.
SC says primacy of judges is paramount and the NJAC compromised it...
If the whole proceeding is recorded and there's transparency with public scrutiny , primacy of judges can be accorded. But primacy cannot be a cover to duplicate the secrecy that characterised previous appointments by the executive. This fear that surrounds transparency is overblown. Take the disclosure of judges' assets. When it was suggested that judges must disclose assets, it created a hue and cry . Now it takes place as a matter of course.There's no reason why collegium meeting minutes being made public wouldn't become a non-issue too. It's been made an issue among a particular group of people. Truth and open ness, no matter how uncomfortable, are better than gossip, imagination or rumour. They destroy judiciary's credibility far more than the truth.
Is it possible in the current climate to reform the collegium without letting the government affect the judiciary's independence?
Justice Chelameswar says decisions to appoint should be taken by circulation. Why a person is selected or not should be on record. If someone has changed one's mind on an appointee, the reasons should be known. For these and similar changes, there's no reason for the court to agree to a Memorandum of Procedure with the government.It'll be in the judiciary's interest to do so itself. In a full court, judges can lay down objective criteria, as was done in the case of laying down the Restatement of Values of Judicial Life, so that everyone knows the internal process and criteria to be followed for selection. This will allay suspicions that people are chosen for reasons other than merit without affecting the judiciary's independence.
Ex-HC CJ Backs Chelameswar's Take On Judges' Selection
Justice J Chelameswar of the Supreme Court, soon to be No.3 in the apex court heirarchy , has found another supporter for his rebellion against the collegium which selects judges for the SC and 24 high courts.
Former Delhi HC chief justice and ex-chairman of the Law Commission Justice A P Shah has come out in support of the senior SC judge, who has refused to attend collegium meetings and has called for more transparency .Justice Shah called the apex court collegium “out of step with democratic culture“ which needed urgent reforms as it “lacks transparency , is inherently secretive and provides for no oversight“.
Delivering the Justice Krishna Iyer memorial lecture in Kochi on Saturday , Justice Shah warned that the confrontation between the government and the higher judiciary was likely to further escalate in the coming days with neither side ready to de fuse the tension. “Things have come to such a pass that it seems to me now that the judiciary and the executive are on a collision course,“ he said.
“It is evident that the collegium system cannot continue to exist in its present form. Until a viable alternative is found, though, reforms in the existing process of selection are urgently needed. This is precisely what Justice Chelameswar did, by his action of walking out of the collegium, and insisting on transparent procedures,“ Justice Shah said.
The former Law Commission chairman added, “Transparency requires that there are clearly established criteria for selection, and that records of selection meetings are properly maintained with views of those who participa ted properly recorded, to ensure that selections are not arbitrary .“ His assertions are similar to the demands made by Justice Chelameswar.
Justice Shah recalled the recent confrontation between the government and the judiciary -the Centre returning 43 recommendations for appointment as HC judges to the SC collegium which reiterated 36 of them -and observed that this was likely to further escalate tension.
Referring to the Constituent Assembly debate, Justice Shah quoted from a speech of Dr B R Ambedkar saying the architect of the Constitution had opposed absolute authority in appointment of judges to any single authority , either the executive or the Chief Justice of India.
“To allow the chief justi ce practically 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 is also a dangerous proposition,“ Ambedkar had said. This resulted in Articles 124 and 217 where the power of appointment, “although residing with the executive was exercisable only after consultation with the Chief Justice of India“.
Justice Shah questioned the rationale in the `three judges' case that led to the collegium system. “No method of appointment was prescribed -the collegium had no office, no institutional staff or framework, no mechanism to gather data, and no criteria for selection.The system was ad hoc and shrouded in secrecy ,“ he said, and observed that through the `three judges' case, “the judiciary usurped the power to elevate justices through a distorted interpretation of Articles 124 and 217 of the Constitution“.
Collegium system: Nariman on its pitfalls
The Times of India, Nov 04 2015
Nariman on the Dinakaran's case and the collegium
Lone Dissenting Judge's View More Sound
Fali S Nariman who opposed the NJAC tooth and nail, unabashedly praised Justice J Chelameswar's lone dissent ing judgment pointing out ma ladies in the collegium system and argued that it must be an eye-opener for urgent reforms in the opaque judges-selec ting-judges system. Nariman said judges in the selection body must be recep tive to views of others. “I will give the last word to the dissenting judgment, because it has got more acceptability,“ Nariman said and went on to narrate the dark phase of the collegium, which, when headed by CJI K G Balakrishnan, had in August 2009 recommended appointment of Justice P D Dinakaran as an SC judge. Dinakaran faced a motion for his removal in Parliament on charges of corruption. The Rajya Sabha chairman had set up an inquiry committee headed by Justice Khehar.Before the inquiry was completed, Dinakaran resigned, putting an end to an inglorious chapter in judiciary.
Nariman gave hitherto unknown details of what was going on then in the collegium.“In Dinakaran's case, I must say something. Very eminent people from Chennai wanted to say something about Dinakaran to the then CJI. Neither the CJI nor any of the five members of the then collegium agreed to meet them. I went and requested the CJI to meet them. But we were all hounded out. If we had gone to the press about the attitude of the collegium members, it would have broken up, collapsed. I was so disgusted that in anger I said I would not appear in the courts of the CJI or any other member of the collegium if Dinakaran was appointed judge.Some judges made nasty comments about me,“ he said.
“The Dinakaran episode told us there was lack of receptivity in the collegium. If a responsible member of the bar wants to tell the collegium about a person being considered for the post of a judge, why should the collegium members not hear him out,“ he asked.
Nariman said judges in the selection body must be recep tive to views of others. “I will give the last word to the dissenting judgment, because it has got more acceptability,“ Nariman said and went on to narrate the dark phase of the collegium, which, when headed by CJI K G Balakrishnan, had in August 2009 recommended appointment of Justice P D Dinakaran as an SC judge.
Dinakaran faced a motion for his removal in Parliament on charges of corruption. The Rajya Sabha chairman had set up an inquiry committee headed by Justice Khehar.Before the inquiry was completed, Dinakaran resigned, putting an end to an inglorious chapter in judiciary.
Nariman gave hitherto unknown details of what was going on then in the collegium.“In Dinakaran's case, I must say something. Very eminent people from Chennai wanted to say something about Dinakaran to the then CJI. Neither the CJI nor any of the five members of the then collegium agreed to meet them. I went and requested the CJI to meet them. But we were all hounded out. If we had gone to the press about the attitude of the collegium members, it would have broken up, collapsed. I was so disgusted that in anger I said I would not appear in the courts of the CJI or any other member of the collegium if Dinakaran was appointed judge.Some judges made nasty comments about me,“ he said.
“The Dinakaran episode told us there was lack of receptivity in the collegium. If a responsible member of the bar wants to tell the collegium about a person being considered for the post of a judge, why should the collegium members not hear him out,“ he asked.
Since 2000, 43 CJs Of 18 High Courts Couldn’t Make It To SC
Retired hurt: Does Justice Shah have valid cause to complain?
Since 2000, 43 CJs Of 18 High Courts Couldn’t Make It To SC
A bowler is allowed to aim two bouncers per over at batsmen. Sometimes, the bouncers catch batsmen by surprise and they either lose their wicket or get hurt. But no batsman complains about the rule that allows fast bowlers to hurl bouncers. At least, Rahul Dravid did not when he was felled by a nasty bouncer from Shahadat Hossain in Bangladesh.
Justice A P Shah played a good innings as a high court judge and as the Chief Justice of Delhi HC. Some former Chief Justices of India, who despite not having ever evaluated him as a judge or seen him from close quarters, also gave him good grades. Unlike Dravid, he retired recently and made it public that he was terribly hurt at not being elevated to the Supreme Court. He also complained about lack of transparency in the selection of judges to the top court.
The system, transparent or not, has always been there and Shah was chosen as a judge of the HC through that. Can anyone be seen complaining that there was a better choice available at the time Shah was appointed as a judge?
There are 16,609 trial court judges, who look forward to promotion as HC judges at some point in their career. But there are only 886 posts of HC judges. So, many of them retire as district judges without ever becoming an HC judge. Should all of them start questioning the selection process?
From among the 886 HC judges, only 26 used to be elevated to the Supreme Court, whose strength has now been increased to 31. An overwhelming majority of HC judges genuinely think they have the mettle to make it to the SC.
Most retire disappointed. Justice Shah will be surprised to know that since 2000, as many as 43 chief justices of 18 HCs have retired without being elevated to the apex court. But no one else aired a grievance in public against the system.
This is not to say that Justice Shah may not have a genuine grievance against his non-elevation to the SC. Let’s go by his suggestion that the system is non-transparent and hence, many a person gets eliminated. There is a sordid flip side, if all material considered by the collegium relating to appointment or elevation of a judge were to be made public.
The material could include unsubstantiated and wild allegations levelled against a judge. If they were to be made public, there could never be any elevation nor appointment to the HCs or to the SC. For, the collegium is yet to consider an appointment or elevation of a judge when it did not receive a letter containing complaints against the person concerned.
All of these proposed considerations for appointment or elevation concern either a district judge, a senior advocate or a HC judge or chief justice. What happens to his future, if such complaints are made public? Would he be able to lead a normal professional life, given the prevailing climate of suspicion where the shadow is always longer than the object?
Justice Shah should take a lesson or two from two great left-arm spinners — Rajinder Goel and Padmakar Shivalkar. While Goel had a first-class wicket tally of 640, Shivalkar had 589. Yet, both of them never played Tests for India. Their ability with the ball was eclipsed by the awesome spin quartet — Bedi, Prasanna, Chandrashekar and Venkatraghavan — that operated during those days. Both Goel and Shivalkar played for nearly 30 years in the domestic circuit and retired graciously.
Be it cricket or judiciary, not every selection can be explained nor can every rejection be logical. Celebrated US Supreme Court Judge, Oliver Wendell Holmes, Jr, once said, ‘‘The life of the law has not been logic; it has been experience.’’
No top jurist made SC judge
The Times of India, Nov 11 2015
It's wrong to ignore constitutional provision
In its 65 years of existence, the Supreme Court has never got a `distinguished jurist' as a judge, making the Union government pitch for the implementation of a constitutional provision mandating the appointment of this rare breed to the highest court.
In its suggestions for the improvement of the collegium system, which the SC revived after quashing the National Judicial Appointments Commission (NJAC), the Centre said the non-consideration of `distinguished jurists' (experts in law) as judges of the SC despite the Constitution so mandating was wrong.
The Constitution, under Article 124, provides for the Article 124, provides for the appointment of SC judges from three sources -a person who has been a high court judge for five years; who has been an HC advocate for 10 years; and, “a person who is, in the opinion of the President, a distinguished jurist“. Interestingly , the Constitution does not provide for the appointment of a `distinguished jurist' -Article 217(2) says judicial officers and advocates with 10 years' experience can be appointed as HC judges.
The Centre said the collegium system has traditional y selected high court chief ustices for appointment as SC judges, ignoring the two other pools of talent. The government requested a five udge bench to introduce specific criteria “for appointment of members of the bar and distinguished jurists to the SC and special emphasis placed on appointing judges from these categories given their historic under-representation“.
“Merit should not be sacrificed for seniority and a deserving candidate who may be a senior judge of an HC should also be considered for elevation to the Supreme Court without him becoming chief justice of a HC,“ the Centre said.
The Centre also suggested an annual public scrutiny of the quality of appointments made by the collegium. “Every year, an annual report on appointments ought to be published and made publicly available. This report will detail the number of appointments made and the process followed.
Collegium system failed: Law panel chief
Law commission chairman Justice A P Shah said THE collegium system’s conduct has been opaque and that appointments to higher judiciary lacked transparency.
The collegium system is so opaque that even if someone wants to speak out, he cannot do it having come through the same system, he said. “The collegium system has completely failed, judges are appointed on unknown criteria,“ Justice Shah said, calling the apex court system of appointing judges as a cabal. “It has failed as favourites get appointed and the rest are left out,“ said the former chief justice of Delhi HC. He pointed out that the collegium had gone ahead to appoint a judge at the age of 60 years when the criteria clearly says any appointment to higher judiciary has to be below the age of 55.
Centre’s arguments in support of NJAC
The Times of India, Jun 06 2015
In 2 decades, govt faulted 20 collegium-approved judges
The central government has in the last two decades raised objections against 15-20 recommendations of the Supreme Court collegium for appointment of judges in SC and high courts.Some of the objections were also made against the recommendations for appointment of chief justices of HCs. The information has been collated to address queries raised by a five-judge constitution bench hearing a case on the validity of the National Judicial Appointments Commission. These are part of the arguments in support of NJAC the government may present before the bench when the hearing resumes on Monday.
The Centre's objections were based on Intelligence Bureau findings, a process followed by the government in case of appointment of a new judge. Though an IB report is not `required' in case of a permanent judge's elevation, but the government may raise objections if it receives an adverse report.
A source said, in most of the cases where the government had raised objections against the collegium's recommendations, the apex court had accepted them and dropped appointments, barring three or four cases where the SC had reiterated its decision. Gopal Subramanium's case was one of them who later withdrew his candidature for SC appointment.
Earlier, the SC had asked the government to place on record facts that how many times the Centre had raised objections against collegium's recommendations and in how many cases the SC reiterated its decision.
The government has been strongly defending the NJAC which has replaced the two decades old collegium system. The six-member NJAC has dominance of apex court judges as three members are from the SC, including the CJI who is the chairman of the commission. Besides the CJI and two senior-most judges of the SC, the NJAC has the law minister and two eminent persons as the other members of the commission.
Though the NJAC was notified in April, it could not be constituted as the CJI refused to be part of the process citing pendency of the case.
The two eminent persons in the NJAC are to be appointed by a committee comprising the Prime Minister, the CJI and the leader of the largest party in Lok Sabha. The first meeting of the committee was scheduled then called off due to refusal of the CJI.
The government is likely to reiterate its commitment to the independence of the judiciary at the same time defending the NJAC.
“The independence of judiciary is derived from the service terms and condition of judges that cannot be changed to their disadvantage,“ the source said.
The collegium system undermined the efficiency of courts: Centre
The Times of India, May 09 2015
Collegium aids favouritism: Centre
The government kept up its offensive against the judiciary's monopoly in the appointment of judges by saying that the collegium system worked like a huge favour-dispensing scheme which undermined the efficiency of courts. Supplementing attorney general Mukul Rohatgi's belligerence in seeking reference of petitions challenging validity of the National Judicial Appointments Commission (NJAC) to an 11-judge bench, solicitor general Ranjit Kumar was blunt when he said on Friday , “The collegium system has done little to strengthen independence of judiciary . It has created intra-dependence among the judiciary .“
Arguing before a bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Goel, Kumar said the collegium's choices were thrust upon chief justices of high courts as fait accompli. For appointments to high courts, the collegiums comprised the CJI and three senior-most judges of the Supreme Court.
The SG said, “I am not taking any name though I have at least 20 such examples. In 1993, the SC appropriated the power to appoint judges from the executive. It is not for judicial independence but intra-dependence. There is a former chief justice, who became an SC judge, who had said `I have to obey my masters to appoint judges in the HC because I want to go to Supreme Court'.“
The startling allegation came just before the bench broke for lunch and that was the reason why there was no response to it from the court.But if the SG's charges are true, it means there was an unwritten quid pro quo in judges' appointment -the chief justices of HCs blindly agree to the choices of the collegium to improve their chances for elevation to the Supreme Court.
Kumar said, “The collegium system has no transparency and lacks accountability. In contrast, the National Judicial Appointments Commission, brought in by a constitutional amendment, has the necessary checks and balances. NJAC will strengthen the independence of judiciary .“
Attorney general Mukul Rohatgi said the problem faced by a few additional judges, whose two-year tenure could come to an end during pendency of the challenge to NJAC's validity , should not deter the court from referring it to an 11-judge bench. “I am ready for an interim order from the court on the issue to protect the additional judges,“ he said.
“What is the hesitation in referring the matter to an 11judge bench? It is a matter of huge importance,“ the AG said. But the bench retorted, “AG, you please don't start deciding how many judges should hear the matter.“
Collegium appointed many inefficient judges: Centre
The Times of India, Jun 11 2015
A day after Supreme Court spoke out against the Centre's “hit-andtrial“ method of appointing judges -in a reference to the replacement of the old SC collegium system with the National Judicial Appointments Committee -attorney general Mukul Rohatgi on Wednesday told the SC that the collegium had appointed many undeserving and inefficient judges to the apex court and high courts who went on to create havoc in the country . Rohatgi submitted in a closed envelope a list of eight cases of what he called “bad appointments and selection“ at the instance of the SC collegium. The attorney general followed that up by referring to what he called questionable conduct by many judges, including three in Supreme Court, as he argued that the notion that only judges could appoint good judges was a “myth“.
He referred to a recent case of a Madras HC judge threatening to initiate contempt proceedings against the chief justice of the court, and asked why action had not been taken against him by the SC, which should have barred him from handling cases. “Havoc is being created in the country due to appointment of such judges.One bad fish can spoil the whole pond,“ the AG said. Attorney general Mukul Rohatgi on Wednesday cited what he called “bad appointments and selection“ of judges, in response to a five-judge Constitution bench headed by Justice J S Khehar asking the government to back up its contention against the collegium by citing instances of bad choices.
Rohatgi referred to the truancy of a former SC judge who generated headlines for lack of punctuality and could hold hearings only in afternoons. The judge used to come late even in the high court but still the collegium recommended his elevation to the SC. “This was the habit going on for the last ten years when the judge was in HC. If such was the track record then how was the judge promoted to the Supreme Court.This is not a rare single case of judicial indiscipline; many judges in various high courts come late and refuse to take up cases after lunch but the judiciary didn't take action against them,“ the AG said, adding that the government did not raise the issue as it would have been termed as interference in the independence of judiciary .
Rohatgi also pointed out that The Times of India was threatened with contempt of court for writing about the judge's lack of punctuality . Significantly , Fali S Nariman, the noted constitutional lawyer who is opposing the government on NJAC, supported Rohatgi on this. The Bench, too, chose not to join issue with him, preferring to switch to a lighter note, saying, “They are lordship in the true sense.“
AG, however, remained serious and moved to cite two other examples of appointments to the apex court by the collegium. He recalled the case of a SC judge who, according to him, was seen as inefficient, and that of yet another whose observations and comments were seen as belittling the dignity of a Supreme Court judge.
Appearing before the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, the AG said the collegium system was not following the principle of meritocracy resulting in inefficient judges being appointed at the expense of deserving candidates. Without taking any names, he said many judg es in the SC and various high courts were not following court decorum and discipline.
Rohatgi said in many cases the collegium did not take into account the merit of a person and decisions to recommend names were taken on the basis of extraneous considerations.He said a retired SC judge in his entire life as a judge in various HCs did not dispose of more than 100 cases, but was still appointed to the SC; he was now a member of a Commission. The AG said there were many deserving judges who had disposed of thousands of cases but were not being promoted. He said some radical thought was required to shake up the present judicial system and NJAC was a step to bring accountability and transparency in the system.
The bench agreed with his contention that collegium made mistakes, but said that could not be the only ground to replace it.
Mr Justice Cyriac Joseph's orders
Mr Mukul Rohatgi’s arguments
The Times of India, Jun 20 2015
89 judgments in all of 115 pages: Rohatgi keeps up attack on judge
Attorney general Mukul Rohatgi ignited the sedate, academic arguments on the issue of NJAC's constitutional validity in the Supreme Court by reiterating his charge against former SC judge Justice Cyriac Joseph that he was miserly in authoring judgments. Rohatgi informed a fivejudge bench headed by Justice J S Khehar that Justice Joseph, while in Uttarakhand high court, had delivered 162 judgments. Of this, he produced copies of 89 judgments that together ran into 115 pages.
“These cannot be even called orders as they did not decide rights of the parties.These are merely stating that the petition has become infructuous or allowing the petition to be withdrawn. In Delhi high court, I know of a worse situation as I prac tised extensively when Justice Joseph was a judge. He had reserved more than 100 judgments and went out, on being transferred, without delivering the judgments, warranting re-hearing of the cases,“ Rohatgi said. Senior advocate Anil Divan shared the AG's impression.
“Of the 162 judgments, two could be called judgments as one ran into 15 pages and the other 27 pages. But both these judgments were authored by the other judge who was part of the bench headed by Justice Joseph,“ the AG said.
The court closed the chapter saying “we are not holding an inquiry into this“, and focused on arguments on petitions challenging the constitutional validity of National Judicial Appointments Commission (NJAC), which replaced the 20-year-old collegium system wherein judges selected judges for the SC and HCs.
Mr Fali S Nariman’s arguments
Fali S Nariman, had argued for lead petitioner Supreme Court Advocates-on Record Association and said states had ratified only the constitutional amendment and not the NJAC. Hence, the government could not legitimately claim that the NJAC had been ratified by states.
Moreover, the NJAC brought out significant changes in the procedure for appointment of judges and hence should have been a part of the constitutional amendment, he said. “By not making the NJAC procedure a part of the constitutional amendment, the government has played a fraud on the Constitution which gave a lot of importance to judicial independence,“ Nariman said.
Appearing for Bar Association of India, senior advocate Anil Divan said the NJAC had opened the door for political interference in the appointment of judges, which has consistently been regarded taboo, both by the Constitution-framers and during the long period of working of the Constitution.
He distinguished the NJAC from judicial appointment commissions working in other countries, and said even in the UK, the selection process did not involve any minister or bureaucrat.
Lawyers seek CJI's recusal from judges' appointment case
A lawyers' body is set to move the Supreme Court seeking recusal of Chief Justice TS Thakur from hearing the petitions seeking expeditious filling up of vacancies in high courts, which are functioning at less than 60% strength.
National Lawyers' Campaign for Judicial Transparency and Reforms, through joint secretary AC Philip, has prepared an application to intervene in the pending petitions [in Nov 2016]. A bench of CJI, Justices DY Chandrachud and LN Rao had slammed the Centre for sitting over the recommendations by the collegium for appointment of high court judges.
It had warned the Centre that if the appointments were not expedited, it would be constrained to summon the secretary in the Prime Minister's Office and justice department secretary to seek explanations on the delay in appointment of judges. The attorney general had sought time till November 11 to report back on the progress in the appointments.
The lawyers' body in its application said judicial propriety demanded that the CJI and Justice Chandrachud recused themselves from hearing the petitions as no one could be a judge in his own case.
NLC president Mathew J Nedumpara told TOI that the CJI, on the administrative side, headed the collegium which recommended to the government the names for appointment as judges of the HCs. “How can the CJI on the judicial side hear petitions and seek expedite implementation of recommendations made by a body headed by him?“ he asked.
Karnan's selection a reflection on collegium system?
Six SC Judges, Three HC Judges Involved In His Selection Found Him Suitable
Is selection of advocate Chinnaswamy Swaminathan Karnan as a judge by the two-tier collegium a sad reflection on its ability to hunt talent for the judiciary? Would the National Judicial Appointments Commission (NJAC), which the Supreme Court quashed as unconstitutional, have been a better process to select judges to constitutional courts?
These questions were hotly debated by advocates in the SC corridors immediately after a seven-judge bench headed by CJI J S Khehar convicted Justice Karnan, a siting judge of Calcutta HC, of contempt and sentenced him to six months imprisonment.
Though one of the judges wrote in the file relating to Justice Karnan's selection as a judge of Madras HC that “he is well conversant with all branches of law“, it appears that he was not too well conversant with the contempt of court law and after becoming a judge, he forgot the consequences of defying the SC's orders.
Justice Karnan's name figured among the 14 selected in September 2008 by the Madras HC collegium comprising then Chief Justice A K Ganguly and Justices P K Mishra and S J Mukhopadhaya. Justices Ganguly and Mukhopadhaya later became SC judges while Jus tice Mishra retired as Patna HC chief justice and was appointed as Goa Lokayukta in 2016.
The names reached the then SC collegium consisting of then CJI K G Balakrishnan and Justices B N Agrawal and Arijit Pasayat.Before putting the names before the SC collegium, CJI Balakrishnan had sought the views of consulting judges -Justices Markandey Katju, V S Sirpurkar and P Sathasivam, all of whom had a stint in Madras HC as chief justice or judge.
Justice Katju said, “I approve all 14 names“ for appointment as judges to Madras HC. Justice Sirpurkar wrote he had “no objection to any name“. Justice Sathasivam recommended Karnan's appointment saying he belonged to the Dalit community and was “well conversant with all branches of law“. The favourable opinion of consulting judges cleared the path for Karnan's appointment as a judge of Madras high court in March 2009.
On March 17, TOI had spoken to judges who were part of the SC collegium in March 2009 but none of them had any recollection about Karnan's traits. “It is eight long years ago. As collegium members, we must be selected over 100 persons for appointment as judges. We mostly go by the recommendations of the HC collegium comprising the chief justice and two senior most judges.Before approving the recommendation, we do take the opinion of SC judges who associated with the HC to which the appointment is recommended,“ they said.
They also said, “There is an unwritten convention in Madras HC collegium to give opportunities to advocates from Dalit category to become judges despite the fact that there is no reservation in such appointments. Karnan always felt he was being targeted because of his Dalit background and targeted his colleague judges for this. At the same time, he did not spare other judges who like him also belonged to the Dalit community .“
On February 8, the SC had drawn contempt proceedings against Karnan for his January 23 complaint to the CBI director seeking investigation into corruption charges against 20 sitting and retired SC and HC judges.
‘Collegium breeds nepotism’: Lawyers' Campaign
Collegium breeds nepotism: Lawyers' Campaign
The Times of India, Aug 16 2016
Lawyers question system, want their own as judges
The National Lawyers' Campaign for Judicial Transparency and Reforms said in a press release that since the collegium system came into vogue through SC judgements in the 1990s, statistics show that 50% of judges appointed to HCs were related to judges, their erstwhile juniors or senior lawyers.
2016, Sep: Allahabad HC Collegium's list includes kin of judges, politicians
The Times of India, Sep 03 2016
Govt sends to SC collegium a list of judge picks, but with some remarks
The government has started moving files on appointments of high court judges, beginning with the list of 44 names recommended for appointment as judges of the Allahabad HC.
The recommendations by the collegium of the HC concerned were pending with the Centre as it sought to go for a vetting exercise, taking inputs from the Intelligence Bureau (IB) and verifying certain complaints against some of the recommendations.
TOI had earlier reported how the government had put on hold the appointment of 44 judges for the Allahabad HC and asked the IB to run in tense checks on the reputation and antecedents of the candidates in view of complaints that many had made it to the coveted list largely because they were relatives of sitting and former judges.
A source said the Centre has put its “remarks“ and attached the IB reports against each recommendation as per procedure and forwarded this to the SC collegium for it to take the final call. The government has the option of sending names back to the collegium for reconsideration if it differs with the SC's recommendations. However, once reiterated, the collegium's choices will be binding on the government, requiring it to notify the appointments.
Around 30 of the 44 names recommended by the HC collegium are lawyers, and at least seven of them are related to serving and former judges of the Allahabad HC, said a source. One lawyer recommended for judgeship is related to a senior member of a leading political party while another is believed to be close to the ruling dispensation and a state government lawyer. About 14 of those recommended are from the state judicial service.
The HC collegium comprises its two most senior judges and is headed by the chief justice. Its recommendations are referred to the law ministry which runs them through the IB before forwarding the names along with its fin dings to the SC collegium to take a final decision.
The Centre also looked into whether the HC collegium had considered representation to OBCs and SCSTs while making final choices.It is believed the list of 44 has a dominance of upper castes.
Earlier, the NDA regime had cleared 115 names recommended by various HC collegiums. All these were made before the SC scrapped the NJAC Act in October 2015. Out of them, 51 judges have been appointed and the remaining 64 were rejected by the SC collegium, according to sources.
A stand-off between the Modi government and the higher judiciary on the memorandum of procedure, which lays norms for appointment of judges to the SC and the 24 HCs, had resulted in appointments of at least 250 recommendations by several HCs remaining pending.
11 out of 28 sitting SC judges [in 2016] had either judges or legal luminaries as relatives
All In The Family
CJI Tirat Singh Thakur
- Father Late Justice Devi Dass Thakur, addnl judge, J&K HC
- Brother Dhiraj Singh Thakur, judge of J&K HC since 2013
Justice Dipak Misra
- Uncle Late Justice Ranganath Misra, former CJI and first chairman, NHRC
Justice Madan B. Lokur
Justice Bhimji N. Lokur, former judge of Allahabad HC and former Union law secretary
Justice Pinaki Chandra Ghose
- Father Late
Justice Sambhu Chandra Ghose, former CJ, Calcutta HC
Justice Sharad Arvind Bobde
- Father Former AG of Maharashtra Arvind Bobde
Justice Shiva Kirti Singh
- Father Late
Justice Shambhu Prasad Singh, Patna High Court
- Maternal grandfather Late
Justice Bhubaneswar Prasad Sinha, sixth CJI
Justice Arun Mishra
- Father Late
Justice H.G. Mishra, former judge, Madhya Pradesh HC
Justice R.F. Nariman
- Father Noted jurist Fali S. Nariman, senior advocate
Justice Uday Umesh Lalit
Justice U.R. Lalit, former additional judge, Delhi High Court
Justice Amitava Roy
- Father Late Anadi Bhushan Roy, senior advocate
- Father-in-law Late
Justice Salil Kumar Dutta, former judge, Calcutta High Court
Justice D.Y. Chandrachud
- Father Late
Justice Y.V. Chandrachud, former CJI
Former CJIs With Judicial/Legal Family Background
Justice Rajendra Mal Lodha
Father Justice Srikrishna Mal Lodha (judge, Rajasthan HC) Uncles Chand Mal Lodha (CJ, Rajasthan HC & Guwahati HC), Guman Mal Lodha (freedom fighter, CJ, Guwahati HC)
Justice Altamas Kabir
Father A minister in West Bengal Sister When she was elevated to Calcutta HC in 2010, Kabir, then a senior SC judge, claimed he had recused himself from the collegium during the selection process
Justice R.C. Lahoti
Father Ratan Lal Lahoti, advocate
Justice V.N. Khare
Uncle S.C. Khare, Indira Gandhi’s lawyer in her famous election case
Justice B.N. Kirpal
Father Amarnath Kirpal, lawyer
Source: National Lawyers’ Campaign for Judicial Transparency and Reforms
A list of 33 senior advocates recommended by the Allahabad high court collegium for judgeship in the country’s largest high court has stoked a controversy with at least onethird of them allegedly related to sitting and retired judges of the Supreme Court and the Allahabad HC.
The law ministry received several complaints from the Allahabad and Lucknow bar against the recommendations and has asked the Intelligence Bureau (IB) for a background check on each of these lawyers, sources said.
This is not the first time that recommendations made by the Allahabad HC collegium have raised eyebrows. In 2016, the HC had recommended names of 30 advocates for judgeship. After complaints from the bar and other quarters, then CJI T S Thakur had rejected the candidature of 11 advocates, resulting in approval of only 19 names. The Centre, too, had validated the allegations through background checks by the IB.
The fresh list of 33 names, sent in the last week of February, allegedly includes the brother-in-law of a sitting SC judge, a first cousin of another SC judge besides sons and nephews of several former judges of the apex court and the Allahabad HC, sources said. In all, at least 10 advocates in the list of 33 are said to be related to former or sitting judges, besides a senior advocate who is allegedly the law partner of the wife of a senior politician in Delhi, sources added.
The law ministry is also verifying if the HC collegium has given adequate representation to candidates from the SC/ST, OBC and minority communities, besides women. In the three lists of more than 83 recommendations made by the Allahabad HC since 2015, very few belonged to OBC/SC/ST, women or the minority community.
The controversy comes at a time when the Centre is demanding more transparency in appointment of judges. The SC has repeatedly refused to approve the draft memorandum of procedure (MoP) for appointment of judges prepared by the government.
The MoP has been pending with the SC collegium since last year. The government-proposed MoP has suggested a broader framework to create a pool of candidates from which the HC collegium could pick candidates, including a consultation mechanism where all judges of an HC or SC bench are consulted before shortlisting names.
At present, only the chief justice of the HC, along with the two seniormost judges of the HC, form the collegium. It draws up a list of candidates and sends it to the SC collegium for its approval and recommendation to the government for appointment. A copy of the list is also sent by the HC collegium to the law ministry and the governor for background checks. The law ministry only works as a post office, collating IB reports and reports received from the state government and the governor and sends them to the SC collegium.
Even in 2016, the HC had recommended names of 30 advocates for judgeship. After complaints from the bar, then CJI T S Thakur had rejected 11 advocates’ candidature, resulting in approval of only 19 names
2018: 11/ 33 Allahabad HC nominees allegedly relatives/ associates of sitting/ retired judges
The government has received multiple complaints alleging nepotism in recent recommendations by the Allahabad high court collegium for the appointment of 33 advocates as judges of the country’s largest high court.
The complaints, received by the PMO and law ministry, have been referred for an Intelligence Bureau (IB) inquiry with at least 11 advocates allegedly claimed to be close relatives and associates of sitting and retired judges of the Supreme Court and the high court. The cases include the brother-in-law of a current SC judge, a first cousin of another, besides sons and nephews of present and former judges.
In a similar case in 2016, the Allahabad HC collegium had recommended names of 30 advocates for judgeship. After complaints from bar associations and other quarters about recommendations, including close relatives of judges and politicians, then CJI T S Thakur had rejected candidature of 11 advocates, resulting in approval of only 19 names. The Centre, too, had validated the allegations through background checks by the IB.
Though an IB check is mandatory and routine in the case of judicial appointments, the specific charges or allegations of nepotism will be examined in the context of the government receiving complaints.
The latest recommendations of the Allahabad HC collegium were made in February this year. The government is also awaiting comments from the governor and UP CM on the recommendations, a mandatory procedure apart from an IB verification.
One candidate in the list of 33 is a law partner of a sitting judge of the HC and another a law partner of the wife of an important political functionary. According to the complaints, scheduled castes (SCs), scheduled tribes (STs) and other backward castes (OBCs) have found a lesser representation in the list.
TOI had in its edition dated March 12 reported that the government has received recommendations from the Allahabad HC collegium for appointment of 33 advocates as judges of the HC. The Allahabad HC currently has 100 judges against a sanctioned strength of 160.
The law ministry, which has received the recommendations of the HC collegium for background verifications, is looking into complaints and will take a view once it receives inputs from the IB and the state government. As per the procedure, the HC collegium sends its recommendation to the SC collegium with a copy to the law ministry for background checks. The concerned governor and the CM provide comments, if any.
After it receives all reports the law ministry sends the dossier with its overall evaluation of the recommendations to the SC collegium for the latter’s consideration.
The allegations raise questions of under-representation of Dalits and minorities as the list is dominated by upper castes. The government’s insistence for transparency in appointment of judges in the higher judiciary by evolving a mechanism for wider consultation and evaluation of candidates has resulted in a deadlock over finalisation of the memorandum of procedure (MoP) that sets out guidelines for appointments. The MoP is currently pending with the SC collegium for almost a year after the Centre had sent suggestions last year to be incorporated in the guidelines for all future appointments.
The government-proposed MoP has suggested a broader framework to create a pool of candidates from which the HC collegium could pick candidates, including a mechanism where all judges of the HC concerned are consulted before shortlisting names. Similarly, for all appointments in SC, all judges of the apex court are given opportunity to suggest a list of prospective candidates.
Currently, only the HC chief justice, along with two seniormost judges of the court, form the collegium and decides a list of candidates to be recommended. In the SC, the collegium comprises the CJI and four seniormost judges of the apex court.
The complaints, received by the PMO and law ministry, have been referred for an IB inquiry with at least 11 advocates allegedly claimed to be close relatives and associates of sitting and retired judges of Supreme Court and HC
Stalemate on memorandum of procedure; disagreements with collegium
HC Judges Named In 2016 Against Average 80'
(In 2016 Chief Justice T S Thakur said that the government was deliberately delaying the appointment of judges to high courts) Rejecting these accusations, the Centre hit back with statistics, disclosing that it had appointed 120 HC judges this year, against an annual average of 80 appointments since 1990.
After scanning records available on appointment of judges since 1990, the law ministry said that on an average, 80 judges were appointed to HCs on the recommendation of the judiciary every year. Two judgments of the Supreme Court in the 1990s took away from the executive the power to select judges.
“The number of judges appointed was 121in 2013, the highest in a year since 1990. But the Union government by November this year has appointed 120 judges, just one short of the highest number ever appointed in a year in the last 25 years. Is it fair in this context to accuse the government of delaying appointment of judges to the HCs? Does the statistics justify the remark that the government is attempting to lock out the HCs?“ a ministry source asked.
“We have always honoured recommendations from the collegium for appointment of a fairly selected person as judge of a high court.We have been prompt. The statistics tell the true story. In 2016, we are just one short of the record number of judges ever appointed in a single calendar year,“ law minister Ravi Shankar Prasad told TOI.
Though the minister refu sed to be drawn into the ongoing spat between the executive and judiciary over appointments, sources in the ministry were quite vocal about their disagreement with the views emanating from the Supreme Court on the appointment process. They did concede that very few appointments took place in 2015, mainly due to the stalemate over the National Judicial Appointments Commission. Sources in the ministry attributed the fall in appointments in 2015 to the pendency of petitions challenging the constitutional validity of the National Judicial Appointments Commission and refusal of the then Chief Justice H L Dattu to head the NJAC when the Supreme Court was adjudicating its validity .
Though the government has been appointing judges to the high courts as fast as it could after proper scrutiny , the main stumbling block in speeding up the process is non-finalisation of the memorandum of procedure (MoP) for effecting appointments though HCs are reeling under a 43% vacancy in post of judges.
A five-judge bench of the SC headed by Justice J S Khehar, who is slated to become Chief Justice of India on January 4, had on October 15 last year struck down the NJAC but conceded there were inherent lacunae in the collegium system.
On December 15, it directed the Centre to redraft the MoP in consultation with the CJI, who would voice opinion after taking view of all members.
A source said: “The ministry had sent the redrafted MoP to the collegium on August 7. Nearly three and half months have passed since then. The government is yet to hear from the collegium on this issue. MoP is the crucial component of selection of judges. Why is it being delayed? Can the SC on judicial side force the government to continue with the appointment of judges which clearly goes against the mandate of the fivejudge bench?“
2018: Bid to elevate Uttarakhand HC CJ
Bid To Elevate U’khand HC CJ Stirs Row
The SC collegium’s decision to recommend Uttarakhand HC chief justice K M Joseph for elevation to the apex court has sparked a fresh showdown with the Centre which has raised strong objections to the selection panel ignoring the seniority of several other judges and CJs of HCs.
The government has argued that Justice Joseph stands 45th in the order of seniority among HC judges and 12th when it comes to CJs of HCs and his elevation overlooks the claims of senior chief justices such as Justice Indira Banerjee, Justice Vineet Saran, Justice Ajit Singh, Justice Rajinder Menon, Justice Pradeep Nandrajog, Justice D B Bhosale and Justice S J Vazifdar.
Senior government sources indicated that the collegium could be asked to rethink its recommendation and also pointed out that there was a skew in the SC with over-representation of Kerala HC. The Kerala HC has a strength of 47 judges and has one representation in the SC in Justice Kurian Joseph. Two judges of the HC — Justices T B Radhakrishnan and Anthony Dominic who are now CJs — are due to be elevated soon.
It is also felt the collegium’s recommendation to appoint senior advocate Indu Malhotra along with Justice K M Joseph is not necessarily twinned. The Centre can approve one and not the other.
Sources in the government are also laying great store by Justice J Chelameswar who missed out on being the Chief Justice of India because the collegium did not adhere to the principle of seniority and this delayed his elevation to the SC. As part of the SC’s constitution bench which struck down the National Judicial Appointments Commission (NJAC), he disagreed with his colleagues who upheld the status quo where the collegium has the sole say in appointment of judges to the SC and HCs.
“There is no accountability in this regard. 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 is good for the people of this country,” sources in the government quoted from Justice Chelameswar’s dissenting verdict.
Justice Chelameswar, the second seniormost judge after the CJI, has raised a banner of revolt along with three other seniormost judges over CJI Dipak Misra not following the seniority principle in allocating important cases to benches.
April 2018/ Justice Joseph: Centre rejects the recommendation by Collegium
Ravi Shankar Prasad said the government's rejection of Joseph's name has approval of the President and the PM
"It would also not be fair and justified to other more senior, suitable and deserving Chief Justices and senior judges of various High Courts," Prasad said in his letter to CJI
In a fresh confrontation with the judiciary, the government on Thursday told the Supreme Court collegium to reconsider its proposal to appoint Uttarakhand high court chief justice KM Joseph to the top court, saying the elevation may not be "appropriate".
The government received immediate support from the collegium head, Chief Justice Dipak Misra, who said the executive was well within its rights + to reject Justice Joseph's name while accepting the second name even though both were recommended for elevation together by the collegium. The names of Malhotra and Justice Joseph were recommended by the collegium in January.
In a letter to Justice Misra, union law minister Ravi Shankar Prasad said the government's rejection of Justice Joseph's name has approval of the President and the Prime Minister and also flagged that the SCs/STs have no representation in the Supreme Court since long.
"The proposed appointment of ... Joseph as a Judge of the Supreme Court at this stage does not appear to be appropriate," Prasad said in the letter. "It would also not be fair and justified to other more senior, suitable and deserving Chief Justices and senior judges of various High Courts."
In theory, the collegium can still reject the government's proposal and re-send Justice Joseph's name to the law ministry, which can then decide the future action.
The government's opposition to Justice Joseph's elevation is likely to deepen the rift between the executive and the judiciary.
In a ruling in 2016, Justice Joseph had cancelled President's rule in Uttarakhand and brought back to power the then Congress government of Harish Rawat in the state. The judgement was seen at that time as a major setback to the BJP-ruled government at the Centre.
The government's decision against Justice Joseph's elevation evoked sharp reactions with the Supreme Court Bar Association President terming it as "disturbing" and the main opposition party, Congress, asserting that the independence of the judiciary "is in danger" and asking if it would now speak in one voice that "enough is enough".
Meanwhile, the apex court rejected a plea of senior advocate Indira Jaisingh to stay the warrant of apointment of Malhotra.
Notification announcing the appointment of Malhotra was issued this morning by the department of justice in the law ministry.
"... the government has been constrained to segregate the recommendation of the Supreme Court ... such segregation of proposals has been done in many cases earlier, which include appointment of judges to various HCs and even the SC in the interest of expeditious action on appointments," Prasad told Justice Misra.
In June 2014, the then Chief Justice of India R M Lodha had written to the government making it clear that the executive cannot segregate recommendations without prior approval of the collegium. This had happened when the government had had decided against elevating senior lawyer and former solicitor general Gopal Subramanium to the Supreme Court, while accepting other recommendations of the collegium, a group of senior most judges of the Supreme Court that decides on appointment of the apex court judges.
But in the meantime, Subramanium withdrew his consent to be recommended for the judgeship.
In his six-page letter this morning, Union minister Prasad said in the all-India high court judges seniority list, Justice Joseph is placed at serial number 42.
"There are presently 11 chief justices of various high courts who are senior to him in the all-India high court judges seniority list," he said.
Out of a sanctioned strength of 1079 judges, the 24 HCs have 669 judges.
Noting that the parent high court of Justice Joseph, the Kerala high court, has adequate representation in the Supreme Court and other high courts, Prasad said the high courts of Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu and Kashmir, Uttarakhand, Sikkim, Maniur and Meghalaya have no representation in the top court.
"It may be relevant to mention here that there is no representation of SCs/STs in the Supreme Court since long," the letter read.
Quoting two Supreme Court judgements, the letter also said that senior HC judges should entertain hopes of elevation to the SC and the CJI and the collegium should bear this in mind.
While recommending the name of Justice Joseph for the top court, the collegium had said that he is "more deserving and suitable in all respects than other chief justices and senior puisne judges of high courts for being appointed as judge of the Supreme Court of India".
The collegium had taken into consideration combined seniority on all-India basis of chief justices and senior puisne judges of high courts, apart from their merit and integrity, the body of top five judges of the Supreme Court had said.
But government sources said the "campaign" to project Justice Joseph as a victim of the order was "disturbing". "It is baseless ... Justice J S Khehar struck down the National Judicial Appointments Commission Act. He was appointed as the CJI," they pointed out.
Centre blocks 2 judge nominees of SC collegium
Joseph As SC Judge, Kant As HP CJ In Doubt
In a blow to the Supreme Court collegium, already bleeding from internal dissension, the Centre has cited breach of “seniority” to block recommendations to appoint Uttarakhand high court Chief Justice K M Joseph as a judge of the SC and Justice Surya Kant of Punjab and Haryana HC as CJ of the Himachal Pradesh high court.
The names of Justices Joseph and Kant were recommended by the collegium to the Centre on January 10 for appointment as SC judge and CJ of Himachal high court, respectively. That was two days before differences among them erupted in public, with Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph holding a press conference to criticise the decisions of Chief Justice of India Dipak Misra.
However, a month and 20 days later, the twin recommendations are yet to be implemented.
While making the unanimous recommendation on January 10, the CJI-headed collegium had said, “(Justice K M Joseph) is more deserving and suitable in all respects than other chief justices and senior judges of the high courts for being appointed as SC judge.”
2018: Govt has right to refer name back to collegium: SC
Court Refuses To Stay Indu Malhotra’s Appointment, Says It’s ‘Unimaginable, Unthinkable, Inconceivable, Never Heard Of’
The Supreme Court refused to stay Indu Malhotra’s appointment and said it was the Centre’s prerogative to seek reconsideration of a name recommended for appointment as a judge of a constitutional court. It added that the collegium would deal with it as per SC judgments laying down guidelines and the Constitution.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud took exception to a group of lawyers led by Indira Jaising and P V Dinesh seeking an urgent hearing on a petition they planned to file questioning the Centre’s decision to clear Malhotra’s appointment as SC judge but referring Uttarakhand Chief Justice K M Joseph’s name back to the collegium for reconsideration.
“We are not against Malhotra’s appointment. But since both the names were sent together, the Centre cannot segregate, decide to appoint one and refer the other back to the collegium for reconsideration. It has to be either appoint both or send back both for reconsideration. We want a stay on Malhotra’s appointment,” Jaising said.
The bench said, “Lawyers seeking stay of appointment of a senior advocate as Supreme Court judge is unimaginable, unthinkable, inconceivable and never heard of. How can warrant of appointment be stayed? It is a constitutional mandate. There is no constitutional provision to stay a warrant of appointment issued by the President.”
Though Jaising dropped the demand for stay on Malhotra’s appointment, she vehemently argued that the Centre could not have resorted to “cherry picking” by stalling appointment of Justice Joseph only because he had authored the judgment quashing the NDA government’s decision to impose President’s rule in Uttarakhand.
The bench said, “Cherry picking is a serious issue and that can be dealt with constitutionally by the SC on the judicial side. However, the government has a right to refer back a name for reconsideration to the collegium. The collegium will deal with it as per the judgments of the Supreme Court laying down guidelines for the collegium in selecting persons for appointment as judges of the SC and HCs. The government does not need the collegium’s permission to refer back a name for reconsideration.”
The SC told Jaising that a grave situation would emerge if the judiciary insisted that the government appoint all names recommended by the collegium or none at all. “We all have been chief justices of high courts. We have seen how difficult it is to select the right persons for judgeship. If the collegium recommends 35 names for appointment as judges and the government clears 30 names but sends back five for reconsideration, should all 35 names be kept on hold?”
“There are situations where the collegium recommends four names and the government clears three while holding back one. In this case, it may affect seniority and future career prospects. But in the present case, the senior advocate from the bar (Indu Malhotra) takes oath first, it does not affect the career prospects of Justice Joseph,” it said.
Ad hoc, fast-track court judges
2012, SC: MC Verma: ad hoc judges have no right to post
The Times of India, Aug 09 2016
Fast-track court judge fails CJI's law test
An aspiring district judge, ordered by a high court to be appointed to that post, ended up ruining his case as he failed to answer CJI T S Thakur's elementary questions on law and procedure in a packed courtroom. As a result, the Supreme Court stayed his appointment.
Having served as a fasttrack court judge in Arunachal Pradesh for 12 years on an ad hoc basis, he was eligible to be absorbed as a regular district judge. But the Gauhati high court, on the administrative side, examined the Scheduled Tribe fast-track judge's performance and rejected his appointment. The judge had appeared for the written exam for recruitment of district judges in Arunachal Judicial Service and failed to secure 35%, the minimum criteria for ST candidates. After failing to get through the normal process, the judicial offi cer moved the Gauhati high court, which directed his appointment as district judge considering his length of service. The administrative side of the HC appealed against the order before the SC through advocate Sneha Kalita.
Appearing for the HC, senior advocate Vijay Hansaria told a bench of Chief Justice T S Thakur and Justices A M Khanwilkar and D Y Chandrachud that in 2012, the SC in Mahesh Chandra Verma case had ruled that those appointed on ad hoc basis as fast-track court judges had no right to the post.The SC had directed that these ad hoc appointees would have to undergo written examination as per the guidelines laid down in Brij Mohan Lal case, Hansaria said. After hearing arguments, the bench asked the petitioner's counsel whether the client was present in court. Finding that he was present, the CJI called him before the bench and decided to take an informal test.
The CJI asked, “You have been a judge for 12 years, so tell us in a suit for specific performance, what is the first thing that a judge would look for in the case?“ Finding his answers way off the mark, the bench decided to put the most elementary question in law, “What is the difference between Section 304-I and 304-II of Indian Penal Code?“ The judicial officer fumbled even as all eyes in the packed courtroom were on him.The court asked another elementary question, “First appeal is filed under what provision?“ Even more nervous, the man told the bench that he had been out of touch with law and procedure for the last three years as he had been knocking on various doors for his absorption as regular district judge.
But having taken an impromptu test, the bench stayed the HC order directing his appointment as district judge on regular basis.
Appointments made, yearwise
2016: 126 HC judges appointed, highest in 25 years
Record no. of judges appointed to HCs in 2016, but it's not enough
At the receiving end from the Supreme Court for sitting over recommendations for appointment of judges to high courts, the Centre said on Saturday that it had appointed 126 HC judges in 2016, the highest in the last 25 years.
The president appointed six more judges last week -five to the Patna HC and one to the Punjab and Haryana HC -to surpass the record of 121 judges appointed by UPA government in 2013.But this record appointment do es little to improve the functioning of HCs, which are reeling under 40% vacancies.
For example, the five appointments to the Patna HC takes the tally of judges to 32 against a sanctioned strength of 56. This means, there are still 43% vacancies. In Punjab and Haryana HC, the number of judges with the lone appointment goes to 47 against a sanctioned strength of 85, with 45% of posts still remaining vacant.
Government sources said that the record appointment in a single year was also noteworthy since it took place despite the memorandum of procedure (MoP) for appointment of judges still to be finalised.
A five-judge bench headed by Justice J S Khehar, the next Chief Justice of India, struck down the National Judicial Appointments Commission and brought back the collegium system in October last year. Two months later, it acknowledged the widespread criticism of the collegium's opaque procedure for judges' selection and asked the Centre to redraft the MoP. The last redrafted version of the MoP was sent by the law ministry to CJI T S Thakurheaded collegium in the first week of August. It is yet to be discussed in the collegium.
However, the CJI had taken umbrage to delay in appointments and had slammed the Centre for sitting over files in what he felt was an attempt to lock out the judiciary . Days after the CJI lashed out at the delay in appointments, the Centre returned 37 names recommended for appointment as judges of HCs to the collegium for reconsideration. The collegium threw the ball back to the Centre's court by reiterating each of the 37 names.
“The 37 names reiterated by the collegium in various HCs are under process,“ a ministry source said. The source said that at present 75 names for appointment to nine HCs were pending with the collegium for consideration.
Appointing the Chief Justice of India
CJIs recommend their successors
Law minister Ravi Shankar Prasad declared the the government had no role in choosing the successor of Chief Justice of India Dipak Misra, who retires on October 2, 2018.
In the Supreme Court, it has been the tradition that the CJI recommends the most senior SC judge as his successor to the government. The incumbent CJI usually sends this recommendation a month before his retirement. Generally, the government announces the CJI-designate nearly two weeks before the person is to take over as head of the judiciary.
There have been aberrations to this tradition and many failed attempts to breach it. The first time such a situation arose was when the first CJI Harilal Jekisondas Kania died on November 6, 1951. M Patanjali Sastri was the senior most. But many believe the then PM Jawaharlal Nehru wanted either B K Mukherjea or S R Das, who were three and four in seniority, to succeed Kania. There are stories that Mukherjea threatened to resign if he was made the CJI ahead of Sastri. This probably sobered the executive and Sastri was confirmed as CJI.
What is common public knowledge is the brazen attempt by the Indira Gandhi government to reward 'committed judges' after the famous Keshavananda Bharati judgment, in which a constitution bench rejected the executive's point of view by a narrow margin of seven to six and went on to deliver the most important judgment in India's judicial history by carving out the 'inviolable basic structure' of the Constitution.
What was a gain for citizens and jurisprudence turned out to be personal losses for many upright judges. In the 1970s, the Indira Gandhi government twice superseded the seniormost SC judge for not dishing out favourable judgments. When A N Ray was preferred over J M Shelat, K S Hegde and A N Grover to be made the CJI on April 25, 1973, the three resigned.
Between Ray's appointment as CJI and retirement on January 28, 1977, the infamous A D M Jabalpur judgment happened, in which H R Khanna was the lone voice disagreeing with the draconian powers of the executive during Emergency. Khanna was the seniormost judge after Ray but the government handed over the baton to M H Beg. Khanna resigned.
When Beg retired in 1978, Janata Party was in power and there was a strong move, both from outside and within the government, to deny Y V Chandrachud, then the most senior SC judge, the post of CJI. The main grievance against Chandrachud was that in the A D M Jabalpur case, he had agreed with the government that all fundamental rights, including right to life, were to remain suspended during Emergency.
Despite having suffered under the tyrannical Emergency, then PM Morarji Desai and law minister Shanti Bhushan creditably stuck to tradition and named Chandrachud the CJI. He holds the record of being the longest-serving CJI with a tenure of seven years. Since then, the tradition has been scrupulously followed. Judges with less than two months of service too have been recommended for the top judicial position. If any doubts about appointing persons with such short tenures existed in the minds of then CJIs, G B Pattanaik and S Rajendra Babu, who were CJIs for 41 days and 30 days respectively, would never have reached the position.
But there have been occasions when incumbent CJIs deliberately delayed sending their recommendation to the government for appointment of the seniormost judge as the next CJI. This troubled at least three judges in the last two decades. But, ultimately, the tradition has remained intact since 1978. Coming back to the law minister's statement discounting government role in choosing CJI Misra's successor, it was more for the record than to reassure Justice Ranjan Gogoi who is the seniormost SC judge after CJI Misra.
In the 1990s, the government's role in selecting persons for appointment as SC or HC judge was wiped out through two SC judgments, which took away the executive's power to select judges through constitutional interpretation. In 2015, the SC yet again asserted that the executive had no role in selection of judges by striking down a politically unanimous decision to set up National Judicial Appointments Commission (NJAC). In this scenario, it is the incumbent CJI's sole prerogative to choose his successor. But the tradition of the CJI recommending the name of the seniormost SC judge as his successor is so firmly rooted that no CJI will find it worthwhile going down in history as the person who violated the basic structure for appointment of the CJI.
CJI Misra, despite being subjected to a rebel judges' press conference attended by Justice Gogoi which gave Congress a handle to move an unprecedented removal motion against him in Parliament, would do well not to record his name in history for the second time by harbouring the thought of recommending someone other than Justice Gogoi for the CJI's post and denying Assam its first CJI.
Appointing retired HC judges
Restricting choice to ex-judges is judicial overreach
The Supreme Court frowned upon the scheme of judges selecting judges for other posts and struck down a Punjab & Haryana high court verdict directing the two states and the Union Territory of Chandigarh to appoint only retired HC judges as head of child rights commissions.
Accepting the pleas of Punjab & Haryana that it was a case of judicial overreach, a bench of Chief Justice JS Khehar and Justice DY Chandrachud quashed the HC order. “We find justification in the arguments and set aside the direction that only judge of HC can be chairperson of Commission for Protection of Child Rights.“
The bench also accepted the submission by the states that section 17 of the 2005 Act provided that a chairperson should be a person of eminence and must have done outstanding work to promote welfare of children. “There was no justification for the HC to direct that the chairperson should be a judge of the high court,“ the states said.
Parliament had passed the Commission for Protection of Child Rights (CPCR) Act in 2005 for establishment of national and state commissions to ensure enforcement of various rights guaranteed to children under the Constitution and other laws, including the Juvenile Justice (Care and Protection of Children) Act; Child La bour (Prohibition an Regulation) Act, 1986; Right of Children to Free and Compulsory Education (RTE) Act, 2009; and Protection of Children from Sexual Offences (POCSO) Act, 2012.
Acting on a PIL in case of Punjab and Chandigarh and suo motu in case of Haryana, an HC bench headed by then chief justice A K Sikri (now a judge of the SC) had in April 2013 objected to Haryana's decision to constitute state CPCR under chairmanship of the minister in-charge of the department.
The HC had said section 13 of CPCR Act encompasses a wide range of powers, many of which were akin to judicial powers. “In order to discharge such functions, the chairperson needs to have legal expertise, judicial wisdom and experience in higher judicial echelons. The functions are clearly quasi-judicial in nature,“ the bench had said. “We direct that the chairperson should be a person who has been judge of the high court,“ it had further said.
Appointing retired judicial officers
Constitution does not bar it
The Supreme Court has ruled that the Constitution does not bar the President from appointing retired judicial officers as HC judges on the recommendation of the collegium.
Justices A K Sikri and Ashok Bhushan said, “In the case of judicial officers of the subordinate judiciary who are recommended for appointment to HCs, the process of appointment consumes so much time that it adversely affects their tenure. It is a matter of common knowledge that most judicial officers get a chance for elevation (appointment as HC judges) only when a few years of service are left.”
The SC observations came in a case where the appointment of two retired judicial officers to the Rajasthan HC was challenged by Sunil Samdaria on two grounds. One of them was that only serving judicial officers could be appointed as HC judges as per the Constitution.
‘Addl judges’ selection meant to cut workload’
The petitioner had alleged that the two, who had retired as judicial officers, could not be said to be holding judicial office at the time of appointment as HC judges.
The second was that no additional judge could be appointed to the HC with a tenure of less than two years as envisaged under Article 224 of the Constitution.
Additional solicitor general Maninder Singh countered both the arguments and said under Article 217(2), a person is eligible to be appointed as an additional judge of the HC if he had rendered 10 years of service as a judicial officer. The Constitution nowhere says that s/he must be a serving judicial officer. Meeting the petitioner’s second argument, Singh pointed out that the Constitution fixed the retirement age of an HC judge at 62 years, so if a judicial officer was appointed as HC judge after retirement, he would hold office only till attaining 62 years of age, which would invariably be less than two years.
Justices Sikri and Bhushan accepted Singh’s arguments and said: “Tenure of appointment of additional judges who have less than two years to retire is not contrary to Article 224.”
Writing the judgment for the bench, Justice Bhushan said the eligibility criteria prescribed under Article 217(2) meant that a person must have held a judicial office for 10 years. “Use of the word ‘held’ in Article 217(2) does not indicate that the qualification also meant that apart from holding a judicial office for 10 years, the person should also be holding the judicial office at the time of his appointment as a judge of the HC,” the bench said.
The SC said that the appointment of additional judges to the HC was envisaged to cope with increased workload in HCs but the enormous delay in the appointment of HC judges “not only frustrates the purpose and object for which Article 224(1) was brought into the Constitution, but also belies the hope and trust of litigants who come to the HC seeking justice and early disposal of their cases”.
Appointments that provoked discussion
2018: elevation of judge while harassment probe is on
Present K’taka HC Chief Justice Sequences Events
Karnataka Chief Justice Dinesh Maheshwari’s recent letter reveals his predecessor, Justice SK Mukherjee, gave a clean chit to district judge P Krishna Bhat by trashing a woman magistrate’s sexual harassment complaint even as the HC’s administrative committee was seized of the matter.
Then CJ Mukherjee’s decision to absolve Bhat, pushing under the carpet the pending inquiry, was quickly accepted by the Supreme Court collegium to reiterate the recommendation for Bhat’s appointment to the Karnataka HC.
On March 12, Justice Maheswari in a letter to CJI Dipak Misra sequenced events in 2016 relating to the sexual harassment complaint. On March 21, senior-most SC judge, Justice J Chelameswar, accused Justice Maheshwari of “doing executive’s bidding’ and warned the CJI and fellow SC judges of the executive interfering in judiciary by writing directly to the HC CJ to ‘look into’ the sexual harassment complaint.
The woman judicial officer had complained on June 3, 2016, four months after the SC collegium first recommended Bhat’s name. The HC registered her complaint on July 30, 2016. Justice Mukherjee had assigned the complaint to the administrative committee comprising himself (as the CJ) and four senior-most judges on August 19, 2016. It was taken up for consideration only on March 8, 2017.
In the meanwhile, on a query from SC, CJ Mukherjee wrote to the CJI on November 14, 2016, saying the sexual harassment complaint is “incorrect and concocted.”
When Justice Maheshwari joined as CJ on February 12, 2018, the HC registry told him the woman officer had sent a representation to PMO on December 11, 2017, alleging “Bhat had managed her June 3 complaint” and she had neither been called for inquiry nor evidence. “This representation was forwarded... to the HC registrar general on January 19,” he said.
When CJ Maheshwari found the administrative committee had simply ‘deferred’ inquiry into the complaint, he convened a meeting of the committee comprising himself and Justices H G Ramesh, B S Patil, R S Chauhan and Budihal R B. They decided to call for response of Bhat in the pending issue.
Calling for Bhat’s response appears to have angered Justice Chelameswar, who wrote in his March 21 letter “the CJ of Karnataka HC has been more than willing to do the Executive bidding, behind our back.” Justice Chelameswar’s letter did not question then-CJ’s propriety in giving a clean chit to Bhat despite the pending sexual harassment complaint. He also supported the SC collegium accepting such a clean chit behind the back of the HC committee.
Justice Chelameswar had written: “At that time we (the SC collegium) were aware of the allegations but we consciously and rightly disbelieved them. Surprisingly, the government selectively withheld his elevation and accepted that for the remaining five others (junior to him).” He appeared worried about Bhat as his letter stated “if such retaliatory complaints are entertained, no career conscious judge would ever risk disciplining his subordinates.”
Rattled by the letter, the HC administrative committee on March 23 decided to close the pending inquiry against Bhat.
Post-retirement assignments for CJI, SC Judges
Since the Supreme Court came into being on January 26, 1950, an overwhelming majority of the 44 Chief Justices of India and the 161 SC judges have accepted postretirement assignments, either from governments or from private organisations.
The announcement from Justice Joseph, the fourth seniormost SC judge, about not accepting any post-retirement assignment came when he was speaking on ‘Media and Judiciary — Two Watchdogs of Democracy’ before students of Kerala Media Academy at Kerala House.
As in 2018
Justice Joseph's rejection (his parent HC is Kerala), on the ground that the SC already had a judge, Justice Kurian Joseph, from Kerala HC is not commensurate with the current composition of the SC
Since 2010, there has been no judge in the apex court from the Scheduled Castes: Law ministry
One of the reasons cited by the government for refusing to accept the Supreme Court collegium's recommendation to appoint Justice K M Joseph to the apex court was that it would distort regional representation in the highest court. Justice Joseph's rejection (his parent HC is Kerala), on the ground that the SC already had a judge, Justice Kurian Joseph, from Kerala HC is not commensurate with the current composition of the SC.
Currently, three judges in the SC out of 25 are from Delhi HC, three from Bombay HC and two each from the HCs of Allahabad, MP, Karnataka and Andhra Pradesh. The government, however, argued that Kerala HC is a small court and its representation must take into account chief justices of HCs along with the SC.
The HCs of Kerala, Odisha, Gauhati, Punjab & Haryana, Madras, Patna and Himachal Pradesh have one judge each in the SC. The four other judges were elevated from the bar, including the newly-appointed Indu Malhotra. If affiliation with states where they practised is taken into account, representation of Delhi and Bombay HCs would further increase.
Ten HCs — Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, J&K, Uttarakhand, Sikkim, Manipur and Meghalaya — having no representation in the SC at present.
Since 2010, there has been no judge in the apex court from the Scheduled Castes, a law ministry official said. The issue also found mention in law minister Ravi Shankar Prasad's letter to the CJI on Thursday where he said, "There is no representation of SCs/STs in the Supreme Court since long."
With Malhotra's appointment, the SC's working strength has increased to 25, but it is still left with six vacancies. Half a dozen more vacancies will arise this year with three judges retiring in the next three months — Justices R K Agarwal (May 4), J Chelameswar (June 22) and A K Goel (July 6). Three more, CJI Dipak Misra and Justices Kurian Joseph and Madan Lokur, will retire in October, November and December respectively.
In his letter to the CJI, Prasad said, "At this stage, elevation of one more judge from Kerala HC does not appear to be justified as it does not address the legitimate claims of chief justices and judges of many other HCs and forestalls the claim of other senior chief justices and judges."
Supreme Court: India (mainly SC's rulings)
Judicial appointments, senior: India mainly the Collegium debate