DY Chandrachud ceded control to the govt. It took over judicial appointment process

During Chandrachud’s tenure, there was little, if any, resistance to the government’s control over the appointment and transfer process. Two major controversies highlight this.

File photo of CJI DY Chandrachud | ANI

Of the Supreme Court’s 33 judges, 17 have been appointed in the last two years—all recommended by the collegium headed by CJI DY Chandrachud. This is perhaps second only to CJI KG Balakrishnan’s record; he recommended the appointment of 20 judges during his nearly three-and-a-half-year term. Chandrachud has elevated Justice PB Varale, bringing the count of Dalit judges in the Supreme Court to three. But no woman judge was elevated in the last two years. The numbers aside, Chandrachud’s tenure will be remembered for ceding more control over the judicial appointment process to the Union Government.

The past two years have seen the “collegium system” of appointment continue to be replaced by what I call the “search and selection committee” method of appointment. In this system, the collegium’s recommendations are not binding on the Union Government and the latter has the final say on appointments and transfers. Not only that—the Union Government will pick and choose when a certain nominee gets appointed, deciding their seniority and chances of future elevation (if they are a High Court judge). Nominees that the government does not like, for ideology or identity, continue to remain in limbo.

During Chandrachud’s tenure, there was little, if any, resistance to the government’s control over the appointment and transfer process. Even though late in his tenure Chandrachud rejected the idea that the collegium was a “search and selection committee”, his actions indicate otherwise. Two major controversies highlight this.

Justice T Raja’s non-transfer 

One of the first decisions of the Chandrachud-led collegium was to recommend the transfer of Acting Chief Justice Madras High Court, Justice T Raja to the Rajasthan High Court. When Raja sought reconsideration, they denied his request. Raja, however, seemed to have friends in high places. The Union Government simply ignored the collegium’s recommendation to transfer him. The collegium reiterated the transfer but this was also ignored. When the collegium recommended Justice SV Gangapurwala to take over as full-time Chief Justice of the Madras High Court, the Union Government waited till Raja’s tenure as a judge ended before appointing Gangapurwala as the Chief Justice.

This was not the only time that the collegium’s recommendations were ignored by the Union Government. On at least three occasions, the recommendations were recalled and modified because of the Union Government’s refusal or objection to appoint certain judges as Chief Justices of high courts. This happened most recently in September this year as the collegium “reconsidered” its recommendations for Chief Justices of High Courts as the Union Government did not budge on its position.

Raja’s continuance as Acting Chief Justice of the Madras HC helped the Union Government. When controversy broke out over the appointment of Justice L Victoria Gowri, Raja ensured that she would be sworn in as soon as possible, ensuring that a challenge to her recommendation by the collegium would be rendered futile. Even here the Union Government played favourites—five out of the eight names recommended by the SC collegium to the HC were appointed (including Victoria Gowri). Even as the SC defended its selection of Victoria Gowri, it stayed silent about the three names left out of this recommendation.

Preventing judicial oversight of appointments. 

Even though successive collegiums and CJIs have feebly protested the Union Government’s takeover of the appointment process, on the judicial side there was some effort to push the government along in taking the collegium seriously. A bench headed by Justice Sanjay Kishan Kaul had, over a period of one year, taken the Union Government to task for not making appointments in a timely manner. The bench also criticised the “pick and choose” policy being adopted by the Union Government when it came to appointments.

However, this case came to an abrupt end a few days before Kaul was to retire as the matter was deleted from the cause list. In open court, Kaul clarified that he had directed the matter to be listed that day and he was ready to hear it but still, the matter was deleted from his list. Although Kaul preferred to leave some things “unsaid” it is quite clear that the matter had been deleted on the instructions of Chandrachud. As the Master of the Roster, he has the final say on what matters get listed and what doesn’t. It is quite unlikely that a high-profile matter such as this would be casually deleted by someone in the SC registry without the knowledge of the CJI.

The case has not been listed since.

To Chandrachud’s credit though, there is a bit more transparency in the collegium process when compared to his immediate predecessors. Collegium resolutions are a lot more detailed—giving at least some modicum of justification as to why someone should be a judge of the High Court or the Supreme Court. Resolutions go into the income, background and gender of the judge, giving at least some insight to the public. Whether his successors continue the practice remains to be seen.

That said, this modicum of transparency does not change the fact that this is the worst-of-all-worlds situation when it comes to judicial appointments. Neither is the independence of the judiciary being protected nor is the government accountable for its choice of judges. The citizen is the loser. One would have thought that a CJI with a two-year term would have at least attempted a pushback against the government’s takeover of the appointment process. Unfortunately, that was not to be.

This article is the second in a 3-part series on DY Chandrachud’s legacy as the Chief Justice of India.

Alok Prasanna Kumar is a co-founder of the Vidhi Centre for Legal Policy. Views expressed here are personal.

(Edited by Theres Sudeep)