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.
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.
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.
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.
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.