The Vidhi Centre for Legal Policy on Monday hosted an event to commemorate the launch of the book ‘Appointment of Judges to the Supreme Court of India: Transparency, Accountability, and Independence’ edited by Arghya Sengupta and Ritwika Sharma.
The event, held at the India International Center, New Delhi, witnessed Supreme Court Justice Jasti Chelameswar participating in a panel discussion with Professor Paul Craig (Professor of Law, University of Oxford, UK). Also seen present at the programme were senior counsel Mukul Rohatgi and Salman Khurshid.
The following are excerpts from Justice Chelameswar’s responses in the course of the panel discussion on ‘The Indian Higher Judiciary: Issues & Prospects’:
On Justice KT Thomas’s remark in the volume launched on Monday that any challenge to the basic structure of the Constitution should be determined by a bench of minimum 13 judges and that the Supreme Court must have a permanent constitution bench of an authoritative number, Justice Chelameswar said, “I would welcome this idea...the problem is that it, first, requires a relook at the jurisdiction of this court... I have commented in my court that Dr. BR Ambedkar would not have imagined the Supreme Court hearing bail applications...the Supreme Court was only intended to decide constitutional issues...many references are lying pending over the last 10 years because of conflicting opinions of division benches...that problem could be avoided...”
In respect of the quantum of Special Leaves to Appeal under Article 136, he remarked, “I do not want to comment on the quality of the High Court...if there was another appellate court above the Supreme Court, half of our judgments would also be reversed...we may work towards improving the quality of judges of the High Courts...this country functioned without a Supreme Court for almost 100 years when the High Courts were mostly the final Authority as very few cases reached the Privy Council...adding numbers to Supreme Court would not help as it is the same stock (with the judges being elevated from the high courts themselves).”
On the qualities of a good judge
Justice Chelameswar responded that being “impartial” is the most essential and “timeless” quality of a good judge, while decision making processes could vary from time to time and place to place.
On any lacunae in the system for appointment of judges, as it existed as early as the 1950s prior to the advent of the collegium system, to choose judges with ‘qualities akin to those of King Solomon’, who Justice Chelameswar has regarded as the legendary dispenser of justice in his forward to the book, The second senior most judge of the apex court remarked that though the Indian Constitution has been so designed as to secure the said qualities, in practice how it is being implemented is a different matter.
On the advent of the collegium system post the Second Judges Case in 1993
“I cannot comment on this, not atheist for a few more days (on account of the 2016 NJAC judgment co-authored by him)...but my views on the issue are clear,” replied Justice Chelameswar.
On being asked if he could foresee a day when candidates would apply for judgeship at the High Courts in India, he responded on a humorous note, “You mean, ‘officially’ apply?”, adding that it could be possible.
In response to a question, in the light of Union Finance Minister Arun Jaitley’s observation in the book to the effect that the non- consideration of Chief Justices AP Shah and AK Patnaik of the Delhi and Madhya Pradesh High Courts respectively for elevation to the Supreme Court implies that seniority is not a criterion, Justice Chelameswar explained, “maintenance of some amount of records of the assessment made by the collegium in rejecting or recommending a candidate could eliminate such problems”. “In determining the elevation to the Supreme Court, there is hardly an assessment of the performance of the High Court judge...it is generally based on impressions.”
On being asked if he agreed on the need for inputs from the civil society outside the judicial fraternity in respect of appointment of judges and if such inputs could secure the appointment of a woman CJI, he replied, “The participation of the civil society in the appointment process may not necessarily lead to a particular result...but my views on such participation are on record in the NJAC judgment”.
On critical reforms the Supreme Court needs to undergo to remain credible in the public eye.
Proceeding to answer from the judiciary’s viewpoint, Justice Chelameswar advanced, “The sanctioned strength of the Supreme Court is 31...if the Supreme Court, being the highest court in the country, was to comprise of 31 judges today, each state would claim a seat therein...state wise representation has become the unwritten norm...”
“Unfortunately, around 35 years back, the policy of transfer of High Court Chief Justices was adopted by the government of India... No political party wielding power in Delhi has been willing to change this since then...couple this policy with the Second Judges Case introducing the Collegium system...all chief justices have an expectation of elevation to the Supreme Court...some High Courts have more than one Chief Justices in different High Courts and each of them is entitled for elevation as per the law laid down by the Supreme Court in the Second Judges Case...”, he continued.
“Besides, how are the claims of seniority to be decided? On the basis of experience as a Chief Justice or what we call the All-India seniority? If it is All-India seniority, then would all the years of experience one has as a Chief Justice be worthless? These problems need to be fixed,” he explained.
During the panel discussion, Justice Chelameswar was also asked if there are any benefits of high courts being assigned “outsiders” as Chief Justices, in the light of the judge himself having been the Chief Justice of Gauhati and Kerala High Courts. To this, he replied, “In Gauhati and in Kerala, I had neither friends nor enemies...the benefit was that the assessment of my work was based on the quality of my work...if I had continued to be in Andhra Pradesh, any decision that I may have rendered would have been looked upon in the light of my past contacts and my background...But are we sure that an ‘outside’ Chief Justice is not influenced by local factors? That will depend on his colleagues and the nature of his interaction with them”, he continued, asking, on a lighter note, “Why don’t we have transferred Chief Ministers?”
Regarding the issue of transfer of high court judges as the Chief Justices of different High Court, he explained, “A judge is appointed as the Chief Justice of a High Court for hardly one year, following which he is elevated to the Supreme Court, or transferred to another High Court or he retires...only a few months’ time is not sufficient to get a grip of the local conditions and problems and to get acquainted with the matters and rules of the High Court...”.