The collegium system of appointment of Judges in the Supreme Court and High Courts was introduced by a Judicial 'Legislation' by a majority Judgment in the 'Second Judges Case'. It was held that "in matters relating to appointments in the Supreme Court, the 'opinion' given by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two senior most judges of the Supreme Court." The Judgment was delivered on 6th October 1993. Justice M N Venkatachaliah (pictured top left) who was the then Chief Justice of India was not a member of the 9 Judge Bench which decided the Case. Eminent jurist, H M Seervai described the judgment as "null and void" since it is against the constitutional provisions.
The functioning of the collegium has all along been shrouded in mystery. As Justice Ruma Pal said "the process of appointment of judges to the superior courts was possibly the best kept secret of the country." The popular perception is that those who are selected are 'suitable' and those not selected continue to be 'non suitable' for elevation. Since the 'person aggrieved' never openly complained, and no 'appointment' came under challenge in any Court, the selection process continues with its share of allegations. According to Fali S Nariman, "before the advent of the RTI (and even thereafter), such impertinent queries were met with responses such as: 'It is none of your business to ask us questions' and 'we (the judges) know what is best for the system".
The judge made system has never been under open attack, till the present Chief Justice of Gujarat High Court, Justice Bhaskara Bhattacharya decided to take on the system openly. That was unprecedented on the part of a sitting Chief Justice. According to Justice Bhaskara Bhattacharya, he was not elevated to the Supreme Court for opposing Justice Kabir's sister's elevation to the Calcutta High Court.
Justice U L Bhat (pictured top right), the former Chief Justice of the Gauhati High Court and the High Court of Madhya Pradesh was considered as one of the best High Court Judges in the Country. Justice G P Singh and Justice U L Bhat were among the best legal minds in the country, the Indian Supreme Court had really missed. The reason for non-elevating Justice G P Singh is described by George Gadbois in his book "Judges of Supreme Court of India" (Page-264 OUP 2011). He says "Justice G P Singh had an excellent reputation but he had run afoul of the Congress(I) Government in Madhya Pradesh, particularly by refusing to accept certain Government nominees for Judgeship". According to Justice K T Thomas, "Justice U L Bhat is an outstanding judge. Even his critics would admit that fact. Non-elevation of judges like him to Supreme Court resulted in a great loss to the Supreme Court itself."
Justice U L Bhat was the first victim of the Collegium system of appointment of Judges. Justice K S Paripoornan (pictured right), who was about two and a half years junior to Justice Bhat in the Kerala High Court was appointed as a judge of the Supreme Court superseding Justice Bhat. Live Law has got exclusive access to some of the materials from Justice U L Bhat's autobiography, "The Story of a Chief Justice" which is expected to be released by 'Universal Publications' next month.
The first collegium consisted of Justices M N Venkatachaliah, S Ratnavel Pandian and A M Ahmadi. Even at the time when Justice Paripoornan was only a judge in the High Court of Kerala, there were informal discussions in the collegium for recommending Justice Paripoornan as a judge of the Supreme Court overlooking the seniority of Justice Bhat. At that time Justice Bhat has been then serving as a Chief Justice nearly for three years. On 24th January, 1994, Justice Paripoornan took charge as the Chief Justice of the Patna High court.
In 1994, during the summer vacation for the High Court of Madhya Pradesh, Justice Bhat along with his wife was undergoing treatment at 'Jindal institute of Naturopathy and Yogic sciences' situated on the outskirts of Bangalore City. While so, he received a call from Justice M N Venkatachaliah expressing his desire to meet him. Justice M N Venkatachaliah dropped down to the Hospital to talk to Justice Bhat.
The following are the excerpts from the conversation between Justice M N Venkatachaliah and Justice Bhat, as described by Justice Bhat in his autobiography.
C.J.I.:- Chief justice, I have come all the way to inform you about an action I have taken. I have recommended the appointment of Justice K S Paripoornan as judge of Supreme Court.
U.L.B.:- (I did not respond for sometime)
C.J.I.: Why are you silent?
U.L.B.:- Chief, what can I say. The matter is entirely within your power and jurisdiction. You have exercised your prerogative. I have nothing to say.
C.J.I. (Remained silent)
U.L.B.:- But even according to the judicial view taken by the Supreme Court, I have legitimate expectations. I have, therefore, a right to be told on what grounds I have been overlooked, though I have absolutely no reservations about the selection of my friend, Justice K.S. Paripoornan.
C.J.I.:- Chief justice, you have a right to know what you desire to know. My colleagues feel that you are "irreverent" to them.
U.L.B.:- (smiling). I never thought any Chief Justice of High Court, much less the Chief Justice of the High Court of area-wise the largest state (M.P. which included Chattisgarh also at the time) is expected to show "reverence" to my brother judges in the supreme court. Respect, regard, affection, yes; reverence – no. Would you elaborate on their grievance about me? Or tell me how many of them expressed such a view. I am sure the other members of the collegium would not have said so.
C.J.I.:- No, I would not like to elaborate. I never suggested that you were required to show reverence to them. I said they feel you have been irreverent to them. There is difference between the two ideas.
U.L.B.:- Chief, I am aware of the difference. Yet I would like you to elaborate.
C.J.I.:- No, I would not like to elaborate.
U.L.B.:- Chief, Is that all you or your colleagues have against me?
C.J.I.:- No. My colleagues also feel that you are a person of strong views and you do not hesitate to express those views.
U.L.B.:- (Smiling broadly). Chief, it never occurred to me that in order to become your colleague on the Supreme Court Bench, one should have no views on anything in this universe, or if one has such views, one should successfully hide them!
C.J.I.:- Chief Justice, you are misrepresenting my words.
U.L.B.:- Sir, I have correctly understood the views you are attributing to your colleagues. I would like to know your own views in the matter.
C.J.I.:- I would not like to say anything more on the subject.
U.L.B.:- Chief, I thank you most sincerely for the extraordinary courtesy you have shown in coming to the hospital and giving me this news. Thank you for avoiding a situation where I read about it in the press. Thank you once again. The news saddens me. I have good friends in several High Courts and Bars in several High Courts. When the news is out, one by one, they will ring me up to find out why it happened. Chief, you are possibly the only CJI to acquire a 'hallow' around your head. People respect you, even revere you for what they think the moral qualities you possess. My friends may even think that you found something deficient in my integrity, honesty, efficiency or effectiveness as a Judge or Chief Justice. Now you have brought a sense of relief to me. Now I can tell my enquiring friends the real reasons for my "supersession" as narrated by you. None will take these reasons seriously.
C.J.I.:- (After a minute's silence). Chief justice, After the lapse of a few months, I will approach you for your consent for recommending you as Judge of the Supreme Court. You must give your consent without any reservation.
U.L.B.:- (Smiling).Chief, that would not be possible. There is a story in Kerala of an uncle beating a nephew for a misdemeanor and the boy shouting "uncle, no use beating me I will never improve"! In the next few months, the two bad qualities you attribute to me are unlikely to disappear. I accept this judgment you have pronounced. Let it be. Please do not take up the issue, lest more colleagues of yours condemn me! I do not like to be judged by your colleagues, who are, after all, my brother judges.
C.J.I.:- Chief Justice, you are to respect the advice of your chief justice. We will see when the time comes.
After a chat of a few more minutes about the hospital and the kind of treatment available, my pater familias and his gracious lady left us. This conversation reminded me of one of our earlier conversations in late 1993 in Guwahati, when Justice M N Venkatachalaiah came there to deliver the "Anandaram Baruah" lecture at my invitation. The gist of the conversation is reproduced below:-
C.J.I.:- Chief justice Bhat, what do you think of Justice K S Paripoornan?
U.L.B.:- (thinking rightly that he was thinking of a possible rival for me, I smiled)
C.J.I.:- Why are you smiling?
U.L.B.:- I see the brilliance of your strategy. If I speak well of Justice K S Paripoornan, who, by the way has been a close and intimate friend of mine as I believe, his position in your eyes, gets strengthened. You will tell yourself "even Bhat thinks highly of Justice K S Paripoornan" and that will cast the die against me. If my remarks are not complimentary to Justice K S P, you will think ill of me and you may believe that I am speaking ill of him because I think he may be my rival. Either way, it will be the end of my aspirations. No, sir, you will not get any answer to your question from me!
C.J.I.:- How else can I know about him, unless you or others share your thoughts with me. Ultimately I have the duty to take decisions. I have got to have feedback from knowledgeable persons.
U.L.B.:- Chief, I agree with what you say. Please go to Cochin, meet sitting judges, retired judges, present and former Advocate Generals and senior lawyers and obtain feedback from them about me or justice K S P or anyone else. That is the right way to do it rather than listening to gossip or hearing possibly interested versions from persons in my position.
C.J.I.:- Chief justice, will you accept the judgment of those mentioned by you?
U.L.B.:- What other choice have I? They are contemporaries and seniors. The bar is the judge of all judges. Please go to Cochin and talk to them.
C.J.I.:- I will do so as I am visiting Cochin next month.
Justice Venkatachalaiah visited Cochin shortly thereafter but did not question any one about Justice Bhat or Justice K S Paripoornan. Apparently, even when he talked to Justice Bhat, he had made up his mind to recommend Justice K S Paripoornan. Justice Paripoornan was appointed as a Supreme Court Judge on 11th June, 1994, just a day before his date of retirement from the Patna High Court.
A couple of months before his retirement, Justice M N Venkatachalaiah informed Justice Bhat that in the upcoming meeting of the collegium, he would suggest recommending Justice Bhat for judgeship of Supreme Court. However Justice Bhat declined the suggestion saying that he would not like to become Justice K.S. Paripoornan's junior in the Supreme Court and the reasons held out against him on the previous occasion continues to exist! Justice Venkatachalaiah asked Justice Bhat to abide by his words and mentioned that he would be going ahead with his proposal. Apparently this meeting of the collegium did not materialize.
In the words of Justice Krishna Iyer, "Bhat is bold, brilliant and original. He is known for his integrity. His views on public issues and institutions are not conditioned by pressures from above or cravings from below. He is independent of expediencies, opportunism and authoritarianism. This I thought was a superlative qualification for a judge to function without fear or favour. But where lesser judges without vision are in authority over judges, this rare virtue proves to be a drawback. Bhat, a good, senior and great judge acted unafraid of authoritarian whims and wayward destinies. Bhat became a martyr. He lost his appointment to the Supreme Court because he was "irreverent" and not obsequious to seniors. And when the constitutionally irrelevant institution called collegium composed of members, often without requisite qualities, is vested with vast and unchecked powers, sans glasnost, then the judiciary suffers from 'obediently yours' judges who are unconcerned with the aspirations of the poor and the weak but are reverential to the concerns of the wealthy and the mighty. Under a system selected and conditioned by bizarre collegiums, a judiciary with inflexible integrity is not a natural byproduct. But if we want fearless conscionable brethren on the bench equal to the rich and the poor, eliminate the collegiums which by their performance until now have made a strong case for their liquidation. Justice U.L. Bhat's exclusion from the highest bench is one of the finest submissions in support of abolition of the collegiums. In spite of unsatisfactory performances by the successive collegiums which act secretly and whose recommendations often are a riddle wrapped in a mystery inside an enigma, neither the executive nor the parliament had the conscience and courage to amend the constitution and wind up the system of the collegium which was a creature of a judgment with a narrow majority of one. All other reasons failing, Bhat's exclusion was sufficient to condemn the collegiums. I have said enough to criticize what I consider unconstitutional in the collegium. Nay more. It is feudal and functionally arbitrary; otherwise it is incomprehensible that anyone should imagine that a person with judicial power however small or supreme should be subservient. No judge is subordinate to another in his judicial functions. It is farcical, flawsome and blundersome for any judge within the scope of his powers to be obsequious. District judges and those of the High Court are not subordinate to anyone, even the chief justice of India, in the area of their jurisdiction. Unfortunately the courts in our hierarchy have imparted the notion of high and low."
Images from here and here.