The Constitution Bench of the Supreme Court ended its two-day hearing on reforming the Collegium, reserving its order. The presiding Judge, Justice J.S.Khehar, while dictating the order, added a surprise phrase, saying the Collegium meetings will not be put on hold till the delivery of the order.
Even today, in response to the AG, Mukul Rohatgi’s plea to let the Collegium meetings take place, even while the proceedings before the Bench are incomplete, Justice Khehar said the bench did not put the Collegium meetings on hold, and if the Collegium wanted, it could meet. The AG’s concern was that the delay in holding the Collegium meetings had led to a huge pendency of cases in the high courts, as more than 400 vacancies of Judges remain to be filled. The bench shared his concern, but hinted that it was not responsible for the problem, as it had not put the Collegium meetings on hold till the conclusion of the proceedings.
Justice Khehar, however, left two things unexplained, probably implying that his listeners would infer the correct message from his brief order. First, the Collegium, in any case, is unlikely to meet till the new CJI, Justice T.S.Thakur assumes office on December 3. The outgoing CJI, Justice HL Dattu, is unlikely to call a Collegium meeting, as his term has almost come to an end, and propriety demands that he respects the privilege of his successor to hold the meeting and decide who should join as Judges in the high courts and in the Supreme Court.
If at all CJI Dattu calls a Collegium meeting, as a result of today’s interim order of the Constitution Bench, he runs a risk of his brothers in the Collegium saying sorry to him in view of the convention and the propriety of not calling such a meeting once his successor has been appointed as the CJI, with effect from December 3.
On the other hand, if the present Collegium has no difficulty in meeting to clear the pending proposals for appointment of Judges, in view of the looming crisis of vacancies in the high Courts and in the Supreme Court, it runs the risk of using the same old discredited procedure to appoint Judges, which has been the butt of the criticism from everyone during the four-day hearing by the Constitution Bench, and in the October 16 main judgment itself, from both the majority and the lone dissenting Judge.
Those appointed under the old discredited procedure followed by the Collegium, after the conclusion of the proceedings by the Bench, will have less credibility than those who may be appointed after the Bench lays down effective guidelines to reform the Collegium, and the existing Memorandum of Procedure (MoP) stands revised.
To avoid such embarrassment to the appointees themselves, it would be advisable for the Collegium not to meet till the Bench delivers its final order on the reform issue, so that the Government and the new CJI get an opportunity to revise the existing MoP, in accordance with the reform order.
Strangely, opinion on this issue is divided, although it is just a matter of days before the Bench is expected to come out with its reform order, and the guidelines. In fact, having concluded the hearing, the Bench could use the next few days, to finalise its order, so as to deliver it before Justice Thakur takes over as the CJI. Both the petitioner’s counsel, Fali Nariman and the AG are of the view that the existing Collegium system should be allowed to recommend Judges, rather than wait for the Bench to deliver its order on reform.
Gopal Subramanium, senior counsel, however, vehemently opposed the idea of the Collegium meeting during the interregnum between the delivery of the main judgment and the one on the reform. In fact, he stands vindicated, as the Collegium members, and the outgoing CJI, on their own, did not think it proper to convene a meeting in view of the ongoing Constitution Bench hearing on the reform. The conclusion of the hearing and the explicit interim order, lifting the non-existent freeze on the Collegium meetings, makes no difference to this propriety. It should be respected till the delivery of the reform order and the revision of the MoP.