After the first Narendra Modi government got Parliament to pass a constitutional amendment bill in mid-August 2014, there were arguments on television and in newspapers against the new law. The amendment meant that the constitutionally-mandated National Judicial Appointments Commission would replace the collegium system controlled by judges.
The Modi government was moving ahead with its plans even as the matter was pending before a five-judge Constitution bench of the Supreme Court.
Finally, on 16 October 2015, the Supreme Court declared the new system “unconstitutional and void”, holding that the appointment of judges will remain the business of judges.
I was surprised by the strong opposition to the collegium system mounted by retired judges on TV debates.
“You don’t know the reality of how these people work when they sit in the collegium. Most of the recommendations have a back story. And, if you had the time and contacts, you could easily decipher. It is more often than not a clear case of you-scratch-my-back-today-and-I-will-scratch-yours-tomorrow,” a former chief justice of Allahabad High Court once said to me after my defence of the “corrupt and opaque” collegium system.
After his retirement, I asked the lone dissenter in the NJAC case – Justice Jasti Chelameshwar – about his opposition to the system. After all, wasn’t he a beneficiary of the same system?
“Judges should not defend their judgments. But, give it some more time and you will also realise your mistake,” he told me.
He was, I have to admit, not wrong.
Also read: Ranjan Gogoi led the revolution in judiciary last year, as CJI he is now killing it
CJ Tahilramani’s knock-out punch
The strongest vote of ‘no confidence’ in the collegium system, one that the government couldn’t succeed in achieving, has now been delivered by Madras High Court Chief Justice Vijaya Kamlesh Tahilramani.
And, unwittingly, five senior-most judges of the Supreme Court, including Chief Justice Ranjan Gogoi, have extended her a helping hand in bringing to light the inherent failure of the collegium system.
CJI Gogoi and the other members of the Supreme Court collegium – Justices S.A. Bobde, N.V. Ramana (both next in line to become CJIs), Arun Mishra and R.F. Nariman – recently decided to transfer Justice Tahilramani, after which she to put in her papers. As ThePrint’s Debayan Roy reported, Justice Tahilramani had opposed the collegium’s demand to elevate as judges two lawyers practising in her court.
Also read: Madras HC top judge Tahilramani’s transfer ‘payback for blocking lawyer duo’s elevation’
Questions for CJI Gogoi and his brother-judges
Since the proceedings of the collegium meetings are never made public – except for the short note announcing a decision – here are some questions that its members, particularly CJI Gogoi, could begin by answering.
In January 2018, the wise men of the collegium, then headed by CJI Dipak Mishra, cited a 14-year-old adverse intelligence bureau report and his “poor performance” as a judge to overlook the Punjab and Haryana High Court judge Ajay Kumar Mittal’s claims for appointment as the chief justice of the Himachal Pradesh High Court.
The members of the collegium didn’t even deem it fit to inform the nation that a few months earlier, two of them, including current CJI Gogoi, had played along to recommend Mittal’s name for the appointment as Chief Justice of Delhi HC.
Then in April this year, the collegium, now headed by CJI Gogoi, gave us no reason for overturning the earlier opposition and recommended Justice Mittal as Chief Justice of the Meghalaya High Court.
Just a few months earlier, the collegium had considered CJ Mittal unfit, but it now decided to appoint him as the chief justice of one of the most important high courts of India. And once again, there was no explanation. That is how opaque the decisions are.
Did any other member of the collegium raise any questions with regard to the move to send Chief Justice Mittal to Madras and Chief Justice Tahilramani to Meghalaya? More importantly, did any judge sitting in the collegium deem it fit to ask the CJI reasons behind his repeated change in view about the suitability or the lack of it with regard to Justice Mittal? We won’t know.
Also read: Collegium musical chairs: How an HC judge set to supersede one, got passed over instead
Repeated violations of memorandum of procedure
As far as the new memorandum of procedure is concerned, which the government and the judiciary started to finalise after the NJAC judgment, the revised age and income criteria have found support from both sides.
Also, the Supreme Court has clearly said that any tinkering with any clause will have to be cleared “unanimously” by five of its most senior judges.
It hasn’t happened yet. The MoP is with the govt and the Supreme Court says it has done whatever had to be done from its end.
But the Supreme Court collegium has repeatedly rejected the red flags raised by the Centre and cleared candidates who didn’t fulfil the age or the income criteria.
Among those who benefited from these questionable decisions are relatives of sitting judges of the Supreme Court.
That the Supreme Court collegium has been selectively applying the income and age criterion is clearly proved when one looks at the number of rejections of names recommended for elevation by the collegium of the high courts of Madras and Calcutta.
As for CJ Tahilramani, if one follows the 1978 judgment of the Supreme Court in Union of India versus Gopal Chandra Misra, the President has no option but to accept her resignation.
But by deciding to resign rather than be made to pay for her principled stand, Chief Justice Tahilramani has shown the mirror to the collegium and left CJI Gogoi and his brother judges embarrassed.
The author is a senior journalist. Views are personal.
The resignation of a judge with 17 years of judicial service, just a year before her retirement, has to raise alarm bells about the health of the system. Judges of High Courts enjoy constitutional tenure and protection and cannot be subjected to public shame for undisclosed reasons. Any arbitrary transfer by the Supreme Court collegium reduces the High Court judges to a subordinate status. Further, the collegium system, by its opacity, has failed to build a fearless and strong judiciary and serve the public interest.
As is the king so are the subjects. As is the mother so are the children. As is the thread so is the cloth. Everyone at the helm of affairs in this country thinks the Indian people in general are incapable of seeing through things, and accordingly those at the helm of affairs in their ignorance take the common man for granted. The Shakespearean dictum, Something is rotten in the state of Denmark,” needs to be rewritten as “Everything is rotten in the state of Denmark.”
NJAC cannot be successful, government should think other mode for appointing judges to lower and higher judiciary, because in the country litigants are poor and the cost of litigation will be heavy, litigants should bear for translation and other problems would arise. But collegium system has to be changed. I advocate for strong accountability act, unless only God can save this country.
कोर्ट में आम लोगों पर अमानवीय जुल्म किया जा रहा है। भ्रष्टाचार शिखर पर है। बड़ा अजीब लगता है कि कोर्ट के लोगों के against शिकायत नहीं किया जा सकता है। कोर्ट में सुनवाई नहीं है पर जनता के ऊपर अवमानना, कोर्ट के काम में बाधा, कोर्ट का कीमती वक्त बर्बाद etc.etc.हथियार की तरह इस्तेमाल किया जा रहा है। अजीब है कोर्ट के साहब ही इल्जाम लगाते हैं, वही जेल में डालते हैं,उसी कोर्ट में सुनवाई के लिए भी लाया जाता है। कोर्ट में सालों साल साहब छुट्टी पर रहते हैं, हड़ताल किया जाता है और जनता पर इल्ज़ाम लगाया जाता है, कोर्ट का कीमती वक्त बर्बाद करने का, कोर्ट के काम में बाधा डालने का। कोर्ट में जनता पर क्या जुल्म किया जा रहा है, देखने वाला कोई नहीं।कोई आपकी बात नहीं सुनेगा।हर जगह जवाब मिलता है यह कोर्ट मैटर है। कोर्ट में भयावह अमानवीय जुल्म किया जा रहा है, और पूरा जीवन बर्बाद कर दिया जा रहा है।
In January justice Sanjeev khanna was elevated directly from the bench superseding 3 judges from the Delhi high court and now collegium had recommended justice Bhatt for elevation whom they did not find suitable in January but again ignoring 2 senior judges. Justice maheswari was accused of doing executive bidding by one senior judge of supreme Court and initially he was ignored and justice Rastogi was elevated but later justice maheswari was also elevated. In the recent recommendation for supreme Court collegium has ignored chief justice of Manipur high court who is the senior most judge from Madras high court and instead recommended recently appointed chief justice of Himachal high court. There are many instances of such anomalies but without any plausible explanation.
Seems there is blanket ban on my comments. Obviously they are not to your liking. Fine. I won’t waste any more time.
Before blaming the collegium system find a better system to replace it. All system fail sometimes, assuming that it has failed this time. What alternative system is available? will it be appointment by central govt? it is one of the bigger if not the biggest litigant. So should it appoint? Or should parliament appoint? Or should journalist appoint or should it be by election? Among the available alternatives collegium system as prevalent is the best though it may sometimes be, if at all misused. Moreover one should not be guided by the views of some disgruntled judges. They have their own axe to grind. the job of the collegium is very onerous and difficult. I am sure all or some of the members of the collegium must be consulting some of the brother judges and also some of the senior advocates privately before taking a decision. I know that that was the position in the Bombay High court and am sure that it must be continuing.
This is the so called merit based system which was in existence from antiquity. This should be introduced for IAS also. Then there will be no resignations etc.sri
The justice of the country is in crisis and we must not hide the face. Recent events are clear proof of this and confirm this situation. This is the whole system that must be reviewed, without going away. The judiciary is there to protect citizens, to uphold the Constitution. In the present case we do not see why in the nominations it is the Head of the SC who would have the last word. We should start by guaranteeing the absolute neutrality and the independence (constitutional guarantee?) of the college. The college should make proposals, and the appointing authority could only accept or reject the proposal. How can one be a judge and a party? This is called in law: the illegal taking of interests !!!
Without reading a word of the NJAC judgment ( an old failing ), supported it fiercely. That is because one would always prefer the frying pan to the fire. If anything, since then the fire has become even more scorching. 2. Justice Tahilramani built a name for herself over two decades as a judge. She was deserving of elevation to the apex court. By her principled resignation, she has ended her career on a high. 3. In the Army, no one can disagree with the Chief. That iron discipline seems now to have pervaded the apex court. It was seen most tragically in the case of the lady staffer who complained of having been treated inappropriately by the CJI.
The collegium system was to benefit the chosen ones who carry some proximate or remote Nexus with the members of collegium. Fairness in nomination as a probable in the list of persons to be elevated from bar to bench is a rare commodity.
Judges in H.C. and apex court have their vested interest that is why ,those in S.C. vehimently opposed NJAC and declared the same unconstitutional on shady ground of Indipendence of judiciary.The working of the collegium is not consistent.The whole system needs an introspection from the side of persons forming collegium to remove doubt hovering in the minds of on Lookers and aspirants.Hoping curative measure will be arrived at .Sooner the better.