The Wire: New Delhi: Monday,
September 05, 2016.
Justice Jasti
Chelameswar’s decision to make public his problems with the collegium – the
Supreme Court group that meets to recommend appointments and transfers of
judges – shows that he is prepared for a long internal fight.
Having
observed the dynamics of the collegium from the outside for the past five years
and then as an insider for the last eight months, Chelameswar is likely to take
steps, albeit cautious ones, to make the collegium’s functioning more
transparent, according to sources.
Initially,
Chelameswar decided that he would not release his four-page letter to T.S.
Thakur, Chief Justice of India (CJI), to the media since he wanted to avoid aggravating
the differences between him and the rest of the collegium and also did not want
to sideline the main issue at hand institutional reform. However, he decided to
share his concerns publicly in order to ensure proper public appreciation for
the issues he has raised.
No
minutes, ever
First on the
list of issues is that the collegium, the body responsible for recommending
judges for appointments and transfers in the higher judiciary – has never maintained a record of the minutes
of its meetings. Since the collegium was constituted, it has functioned without
any record of what the five-member collegium’s individual members have said
during their deliberations.
Chelameswar
has pointed out that the lack of record means that the CJI can present the
collegium’s opinions to the government as unanimous decisions and deny the
existence of any dissent within the body without any proof to show otherwise.
This lack of
record strikes at the root of the Supreme Court’s nine-judge bench’s ruling in
the Second Judges case in 1993, which created the collegium. The collegium,
then comprising three of the senior-most judges of the Supreme Court including
the CJI, was created, in order to make the president’s consultation with the
CJI, as envisaged under Article 124, broad-based. Another bench increased the
size of this collegium to five judges in the Third Judges case in 1998.
As an insider
in the collegium, Chelameswar is not referring to a hypothetical possibility.
Although he is currently reluctant to share the details of such aberrations,
sources insist that Chelameswar has made these comments keeping in mind
incidents from the recent past that he believes marred the collective
functioning of the collegium. His observations also raise the question of whether
Thakur ever inadvertently denied dissenting opinions within the collegium while
communicating with the government.
The Supreme
Court, in its advisory opinion to the president, in the Third Judges case, on
October 28, 1998, held as follows:
“Necessarily,
the opinion of all members of the collegium in respect of each recommendation
should be in writing. The ascertainment of the views of the senior-most Supreme
Court judges who hail from the high courts from where the persons to be
recommended come must also be in writing. These must be conveyed by the CJI to
the Government of India along with the recommendation. The other views that the
CJI or the other members of the collegium may elicit, particularly if they are
from non-judges, need not be in writing, but it seems to us advisable that he
who elicits the opinion should make a memorandum thereof, and the substance
thereof, in general terms, should be conveyed to the Government of India.”
It is clear
that in this case the court held it mandatory for the collegium to maintain a
record of its proceedings, which should include the collegium members’ reasons
for recommending or rejecting candidates considered by them.
Read
together, the judgments in the Second Judges and Third Judges cases require
that if even two judges in the collegium express strong and well-reasoned views
against the appointment of a particular person, the CJI will not press for such
an appointment. In such a case, the recommendation is simply not sent to the
government.
What
happens when a member disagrees?
Chelameswar’s
dissent in the collegium raises the question of the consequences of one member
disagreeing. The majority judgment in the Second Judges case contemplates the
non-appointment of a person recommended on the ground of unsuitability. It says
that such a non-appointment “must be for good reasons, disclosed to the CJI to
enable him to reconsider and withdraw his recommendation on those considerations.”
Thus the
government can ask the collegium to reconsider a recommendation on the ground
that one of its members has dissented. The recommendation, if reiterated, is
binding on the government; but for reiteration to be accepted, it has to be
unanimous. A dissenting member of the collegium, thus gets an opportunity to
exercise a veto, while reconsidering a recommendation.
Paragraph 26
of the judgment in the Third Judges case makes it clear that an appointment can
only be made if it is unanimously reiterated.
Therefore, if
the collegium does not keep a record of its proceedings, how will the
government know whether the original recommendation, or its reiteration when
asked to reconsider, is a unanimous one? It has to necessarily rely on the word
of the CJI. But if his word were to be contested by other collegium members,
then complying with the CJI’s version would become problematic for the
government.
Negative
consequences
One such
negative consequence of not keeping records came to light recently. In March
this year, the Supreme Court bench comprising justices Ranjan Gogoi, Arun
Mishra and Prafulla C. Pant dismissed a challenge by Lalit Kumar Mishra, former
additional judge of the Orissa high court. Mishra had challenged his non-appointment
as a permanent judge of the high court despite the Supreme Court collegium
recommending his name to the government.
The court
declined Mishra’s plea on the ground that there were no records of the
proceedings of the Supreme Court collegium, and therefore, his request for
access to records of meetings held in connection with recalling his
recommendation could not be granted.
Mishra had
contended that there was nothing in writing to suggest that the Supreme Court
collegium reconsidered its recommendation to make him a permanent judge of the
high court.
When the
bench pointed out that the CJI, in his individual capacity, wrote that he was
recalling the recommendation to make Mishra a permanent judge, his counsel told
the court that the Supreme Court collegium should have considered it. Since it
didn’t, the CJI’s letter recalling the recommendation to make Mishra a
permanent judge was vitiated, the court was told.
On August 17,
a three-judge bench of the Supreme Court, comprising justices Ranjan Gogoi,
Prafulla C. Pant, and A.M. Khanwilkar, referred the question of whether an
applicant could seek details of the meetings of the collegium under the RTI
Act, to a five-judge constitution bench.
According to
observers, Chelameswar’s dissent in the constitution bench judgment in the NJAC
case last year and the current stand-off between the collegium and the
government on revising the Memorandum of Procedure in light of transparency
and other principles, should not detract from the substance of his current
concerns on the absence of record-keeping which lies at the root of the
current crisis.
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