10 Jan 2021 6:24 AM GMT
Former Supreme Court judge, Justice J Chelameswar recently criticized the practice of Central Government sitting over recommendations for judicial appointment as "not a democratic process nor a healthy practice"."If the Government has concrete and legally tenable material to object to a recommendation, they have a right to object and discuss with the Chief Justice. But simply not...
Former Supreme Court judge, Justice J Chelameswar recently criticized the practice of Central Government sitting over recommendations for judicial appointment as "not a democratic process nor a healthy practice".
"If the Government has concrete and legally tenable material to object to a recommendation, they have a right to object and discuss with the Chief Justice. But simply not deciding anything – sitting on the matter, without clearing the recommendation, is certainly not a democratic process nor is it a healthy practice", he said.
He was speaking at a webinar on the topic "Accountability & Transparency in Judicial Appointments: Need for Institutional Mechanisms" as part of Kannabiran Memorial Lecture series.
Justice Chelameswar said that the book 'The Informal Constitution' by Abhinav Chandrachud gives such specific instances of government sitting over collegium recommendations.
"There is recorded evidence in that book regarding the abuse of power by the political executive prior to the Second Judges case. Government sat on the recommendations made by the CJs, government delayed the appointment process because the suggestions made by the CJs of a High Court or the Supreme Court was not to their liking".
"Certainly, if the Government has concrete and legally tenable material to object to a recommendation, they have a right to object and discuss with the CJ. But simply not deciding anything – sitting on the matter, without clearing the recommendation, is certainly not a democratic process nor is it a healthy practice. Such things happen. "The Informal Constitution" gives specific instances. I remember particularly a case in Madhya Pradesh where the name of a particular Additional judge was recommended on three occasions by the CJ concerned for permanent appointment. Every time, the Government of India issued orders extending the tenure of additional judgeship", he added.
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In 2019, the Gujarat High Court Advocates Association filed a writ petition in the Supreme Court saying that the Centre was selectively withholding approval for the proposal to elevate Justice AK Kureshi as he had given certain decisions unfavorable to the establishment while being a judge of the Gujarat High Court. The GHCAA had pointed that though the Centre had cleared the other recommendations made on the same day, it was sitting over the proposal regarding Justice Kureshi. After several postings of the petition in the Supreme Court, the Ministry accepted the proposal for Justice Kureshi's elevation, but with a modification that he be made the Chief Justice of the Tripura High Court instead of the Madhya Pradesh High Court as had been originally suggested by the Supreme Court Collegium. The Collegium did not object to this modification sought by the Centre.
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Instances of collegium failure mentioned
Justice Chelameswar further said that his dissent in the NJAC case mentioned instances "when the collegium did not exercise the authority strictly in accordance with the demands of the Constitution".
"Post the Second Judges case, when the collegium had much greater say in the appointment process of the members of the constitutional courts, there are instances when the collegium did not exercise the authority strictly in accordance with the demands of the Constitution – letter and spirit of the constitution, as explained by the judgment of Supreme Court in the Second Judges case. I've recorded in my dissenting judgment, at least two such instances. It is not that there were just two, there were more and recorded too. My idea was not to create a controversy", he said during the lecture.
Those instances mentioned in the NJAC dissent by Justice Chelameswar are the events which led to the decisions reported in Shanti Bhushan &Another v. Union of India & Another, (2009) 1 SCC 657, P.D.Dinakaran (1) v. Judges Inquiry Committee & Others, (2011) 8SCC 380, P.D. Dinakaran (2) v. Judges Inquiry Committee &Another, (2011) 8 SCC 474.
The dispute in Shanti Bhushan case (supra) was regarding appointment of a permanent Judge to the Madras High Court. The allegation appears to be that the procedure indicated in the Second and Third Judges cases had not been followed.
"..the content of para 22 of the judgment (in Shanti Bhushan case) leaves me with an uncomfortable feeling that there was some departure from the law perhaps under some political pressure", Justice Chelameswar had noted in the judgment.
The second event is a recommendation made by the then CJI apparently with the concurrence of the Collegium for elevation of Justice PD Dinakaran.The recommendation did not fructify.Serious allegations of unsuitability of the candidate whose name was recommended surfaced leading to a great deal of public debate.
In the context of the proposal to elevate Justice PD Dinakaran, Justice Chelameswar observed in the dissent :
"...the recommendation(to elevate PD Dinakaran) certainly exposed the shallowness (at least for once) of the theory propounded by this Court in the trilogy of cases commencing from S.P. Gupta and ending with the Third Judges case that the CJI and the Collegium are the most appropriate authorities to make an assessment of the suitability of candidates for appointment as Judges of CONSTITUTIONAL COURTS in this country".
Period audit necessary
"To maintain the standards and efficiency and quality, a periodic audit, not only of the performance of the individual judges but also the performance of the system as such is required", he said.
"Unfortunately, in my opinion, that kind of an audit – an open debate, a rational and healthy debate devoid of partisan political views is becoming scarce in this country", he added.
He also called for introspection as to whether the Collegium system has yielded better results, especially after the declaration of NJAC as unconstitutional.
"After declaring such an alternative procedure to be unconstitutional for being not conducive to the independence of the judiciary, how did the appointment process go on in this country, for the last five years after that judgment? The information is in public domain. In any system run by human beings, absolute perfection is not possible. Some amount of imperfection is always there. The question is what is the quantum of that permissible imperfection? What is the degree of that imperfection? By and large, did it yield better results than what the NJAC would have yielded?
I'm not saying either the NJAC or existing regime, or the regime that existed pre-Second Judges case would yield perfect results in choosing the best talent/ most suitable judges/ most upright judges/most learned judges. I don't think it's possible in the system. But the question is, if a good number or a substantial number of judges chosen by any one of these processes turn out to be learned/virtuous/hard working, then the system is good.
India experimented with the regime that existed prior to the Second Judges case – that is when the government had a considerable say in the selection process, and eventually the Supreme Court said that this process is not very wholesome, looking at it from the point of independence of judiciary, which in turn is a condition precedent to the development of a healthy democracy. An alternative procedure was devised by the Supreme Court. There was bitter criticism about it, saying that the Supreme Court legislated. Much stronger language was used saying that the Supreme Court usurped the power of the government. The process changed. Did it yield any better result, is a question?", he said.
Difficult to accept the argument that elected government cannot have a say in appointments of judges
Justice Chelameswar said that he found it difficult to accept the argument that the elected government cannot have a say in the matter of judicial appointments.
"Now the question is whether electoral politics and elected representatives of the people should have some say in the process of appointment of the members of judiciary. I believe it is difficult to say that they should have no say at all. I must also say that it is not my idea to say that the power of appointment should be handed over to the political executive. As it was rightly pointed out in the Second Judges case, it is a participatory process, for identifying the best talent and the best persons.
Participatory process is a philosophical statement -- what exactly is the process, and how it is to be outlined, what are the procedures that are required to be adopted, can be determined by law. Either it is statutory law made by the parliament, or a constitutional amendment. NJAC was one such experiment. By a constitutional amendment Parliament almost by unanimous vote amended the Constitution. If I remember right, there was only one vote against the bill – all others believed that the existing procedures needed some modification, and therefore, Parliament prescribed a different procedure", he said.
"It is an exercise of trying to identify the best for working a great institution like the judiciary, which is meant eventually for the welfare of the people. That should be the spirit in which examination or debate or discussion should take place. It is not the question of who is superior to whom, or who should have the ultimate say. If we believe genuinely that this process is meant for identifying the best people to be judges of the constitutional courts of this country, then these questions – who is superior, who is inferior, who has the last word – do not arise. It is a participatory process of identifying the right people", he added.
The full text of the lecture is available here.