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OPINION: Mistake Undone – Error Committed – Segregation of Collegium’s Recommendation by Union

“Has the judiciary developed an alternative constitutional morality to emancipate it from the theory of checks and balances, robust enough to keep it in control from abusing such independence?” So asked Justice Chalameswar in his dissenting Judgment in the famous NJAC Act case decided on 16.10.2015 . The other 4 Judges of the Bench,  the majority which struck off the NJAC Act and the 99th Constitution Amendment as unconstitutional  being violative  of  the Basic Structure of the Constitution Of India , included Justice Kurian Joseph and Justice Madan B. Lokur who are also the members of the current  collegium   . The question which the dissenting Judge Chalameswar asked himself as well as the Constitutional Court , did not sink in  even after a span of two years and lingered over the intelligence of the executive,  resulting in the executive raising many more questions concerning appointments of the judges to the Constitutional Courts.

 The Supreme Court , after the Justice H.R Khanna episode, during the tenure of a Government which eclipsed all Constitutional rights including the democracy by virtue of Emergency,  had to formulate a mechanism by which the Independence of judiciary would not be done away with, resulting in the various Judges appointment cases. The Seven Judges  Bench of the Hon’ble Apex Court in S.P. Gupta went on to decide the validity of the Circular of the then Law minister dated 18.03.1981 which went on to stipulate various things including issues regarding transfer of judges. The Apex Court also considered the meaning of the word “consultation” as well. In 1976 there was a mass transfer of 16 judges. Though in Sankal Chand case which challenged such transfers by one of those judges who was subjected to transfer, the consultation was interpreted to mean effective consultation and sharing of complete data but still the power was vested with President to take a decision after such consultation. After the general election that took place in 1977 all those judges transferred enmasse, during emergency were sent back to their Parent High Courts. But again, the letter dated 18.03.1981 sought to interfere with the transfer of the judges resulting in the same being challenged in S.P.Gupta case on the ground that it is a direct attack on the independence of the judiciary,  which is a Basic Feature of the Constitution .The word consultation was given again the same meaning as held in 1977. There after every new ministry of the Union tried to interfere with the appointment of the Judges to the various High Courts and the Supreme Court.

Instances are reported in various archives and in different judgments of the Hon’ble Apex Court including one such instance of the stalling of the appointment of 67 persons recommended by the Chief Justices of various high courts during the tenure of the Union Government headed by the then Prime Minister V.P.Singh heading the Coalition of the left parties . This resulted in the Constitution of a Larger Bench of 9 judges, to decide the Supreme Court Association of Advocate on Record vs Union of India (the Second judges case). All the judges agreed unanimously that the independence of the judiciary is indispensable but there were difference of opinion among judges as regards the mode by which the establishment and continuance of such an independent judiciary can be achieved. The question necessarily was whether there can be an independent judiciary when the power of the appointment of judges vested in the executive? The majority held that the consultation with the Chief Justice of India proposed by Article 124 and 217 was interpreted as conferring primacy to the opinion of CJI.

Justice Krishna Iyyer who was also a member of the bench which interpreted the word consultation in 1977 in his article in 2002 opined that now instead of Ministers, Judges patronized. Hence forth the consultation with the Chief Justice of India resolved itself to be a consultation with the collegium formed by virtue of judge-made laws (in 3rd Judges Case in 1998). A collegium,  the selection by which  , as per Justice Rumapal who was also a member of the collegium, was one of the best kept secrets of the country. The process being opaque, she commented , what takes place in the collegium,  at time is a trade-off within the collegium, which may result in dubious appointments resulting  disastrous  consequences for the litigants and the credibility of the judicial system. There had been various litigations in the Supreme Court challenging the appointment of the judges recommended by the collegiums including the appointment of Mr. P.D. Dinakaran to Supreme Court.

99th amendment of the Constitution was mooted and brought into the constitution in 2014 . The ordinances were also sought to be challenged. But ultimately when the Act was passed , the Supreme Court struck it down holding it to be unconstitutional upholding the Supremacy of the opinion of the collegiums, which backed the decision or the opinion of the Chief Justice . This being the back ground as the regards the appointment, the segregation of the appointment of the Justice Joseph, Chief Justice of Uttarakhand High Court ,to the  Supreme Court  need to be understood and appreciated from the experiences of the past. It would be a sin and one would be condemned for repeating their mistake if one forgets its past.

The Supreme Court was forced to resolve its own mechanism for the consultation as well as to formulate the opinion of the Chief Justice which needs to guide the President in the appointment of the Judges because of the unwarranted excesses of the Union Government in the past. In formulating such a methodology, the Supreme Court though restrained the interference of the executive; it failed in being selfless while recommending a candidate for appointment. The Central Government while now trying to undo such usurpation of power by the collegium  , caused its sword to fall , unfortunately though ,  on the head of an upright judge who took a stand, legally and constitutionally, against the Government. It is not unknown that in an earlier instance, there were differences of opinion within the collegium itself as regard the appointment of Justice Joseph, on the point of seniority among Judges.

The question now is whether the Chief justice would resend the name of Justice Joseph and whether the President would be bound to appoint him, if such recommendation . In the second judges case’ it  has been held that the name recommended can be send back only for good reason which need to be communicated to the Chief Justice. If going through the reason the CJI is also of the same opinion, then the name need not be recommended again. Second Judges Case’ and Third Judges case also gives leverage to the other members of the collegium to have a difference of opinion from the earlier recommendation in tune with the reasons of the President/Union.  As per the Third Judges Case, the Chief Judge or any other member can also have a difference of opinion and withdraw the earlier recommendation. If a new collegium comes into existence, by virtue of retirement of a member of collegium, then recommendation will have to be reconsidered, with opinion of earlier members being made available. With Justice Chalameleswar’s retirement due in May,2018  entire scenario and composition of the Collegium may change with Chief justice being guided by a different Collegium . It would not be imperative and mandatory, for the CJI, in law,  and as per Constitution of India, if in case he agrees with the opinion of President or Union Government, to resend the name of the Person so returned.

At any rate, independence of judiciary is a must for democracy to survive. But autocracy of the Collegium also can’t be permitted. The attempt of the Executive today is to undo the wrong of the Collegium appointment. But that can’t be undone by a larger wrong. For an error can’t be undone by a graver error.

 

Renjith Marar is an Advocate practicing in the Supreme Court of India. Views expressed are personal and does not reflect those of The Indian Jurist.

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