Speaking at an event recently, former Judge of the Madras High Court, Justice K Chandru, talked about how the executive and the judiciary have continued not to make efforts to bring in a permanent system for the appointment of judges and instead preferred the collegium system.
Chandru talked about how, after coming into power in 2014, the present Union Government had attempted to bring in the National Judicial Appointments Commission (NJAC), but the same was struck down by the Supreme Court. He added that instead of opting for an amendment to the law and removing the basis on which the judgment was passed, the Government preferred the "barter deal" through which judges recommended based on certain criteria could be appointed.
“Now you may ask me, after the National Judicial Appointments Commission was struck down, why is that Modi did not go to the Parliament and seek for amendment. You cannot overrule a judgment. You can remove the basis of a judgment. If you say 3 is an unequal balance, you may make it seven - 4:3. You can still bring it. But he did not choose going to the parliament, bring another amendment, and bring an appointment commission, which is a permanent commission. On the other hand, from 2014 to 2026, in the last three terms, if you see, in the Supreme Court today there are 37 judges. All 37 judges were appointed by Modi,” Justice Chandru said.
“If Modi can appoint 37 judges and happily sit there, why should Modi worry about the National Judicial Appointments Commission. This is much better. In my book, I have mentioned that this system of collusion, which is done behind the scene which is more profitable than the system of NJAC which is uncertain because there'll be some objective assessment. People can see. Nothing is secret. Therefore Modi feels this secret barter is much more better,” he added.
Justice Chandru also gave examples of how the appointment of Justice Victoria Gowri easily came through even though she had openly made speeches attacking the minorities, whereas the appointment of Advocate John Sathyan has still not been cleared even though the collegium had reiterated its recommendation.
Justice Chandru also spoke about increasing “saffronization” in the High Courts and how, if the name of a member belonging to a particular group was recommended, that list would go through easily whereas other lists kept getting stalled.
“Increasing saffronization. Every High Court there is a person belonging to that saffron group. How did it happen? Do they all represent a great number of cases or they are exceptionally brilliant. Today, I'm telling you there is an unwritten SOP that if you are a saffron member, your list will go through otherwise your list will get stalled, it'll continue to be stalled,” Justice Chandru said.
Justice Chandru also talked about how, despite the Constitution providing for several sources for appointment of judges, the system still preferred direct recruitment.
“The Constitution provides for several sources. One source is a jurist. Why have you never appointed a jurist? In America, they appoint a Harvard professor. In India, you don't appoint any law professor. You don't appoint any jurist. Even in service law, if there are several sources of appointment, you will have to exhaust every source, not confine to only one source, direct recruitment or some other service,” he said.
Justice Chandru added that appointment of judges is an important issue which should concern every person and not just a few. Justice Chandru highlighted that the present system was only a constitutional coup for backdoor appointment.
“Now this is a very important issue. An issue which concerns everybody in this country. It is not as if it's for some people to shout. We will have to take up that issue. First we need a permanent solution, not an ad hoc solution. Secondly, when the Constitution does not provide a particular method, how do you bring in through back door? That's what we talk about constitutional coup. This is a constitutional coup,” Justice Chandru said.
Justice Chandru was speaking at a colloquium on “Who will Judge the Judges” organised by the Asian College of Journalism. He was delivering a keynote address on “The Collegium System of Appointment is a Constitutional Coup”.