It’s the issue that matters, not the judge : The Tribune India

Join Whatsapp Channel

It’s the issue that matters, not the judge

On September 2, 2016, a newspaper reported that Justice Chelameswar, the fifth senior-most judge of the Supreme Court and the junior-most member of its collegium, had declined to attend a meeting of the collegium scheduled for the previous day.

It’s the issue that matters, not the judge

Many former Supreme Court judges and Chief Justices of India have criticised the working of the collegium Photo: Manas Ranjan bhui



Raju Ramachandran

On September 2, 2016, a newspaper reported that Justice Chelameswar, the fifth senior-most judge of the Supreme Court and the junior-most member of its collegium, had declined to attend a meeting of the collegium scheduled for the previous day. The report was quite specific about when the letter was written: it was on the day of the meeting. It was also specific about the length of the letter: three pages. Without disclosing its contents, the report was clear enough about the stand which the judge had taken, namely that he wanted a formal recording of the minutes of the meeting, which would indicate the views of each participant on the desirability, or otherwise, of each proposed appointment.

When the report became national news the next day, Justice Chelameswar did not appear to be disturbed. He confirmed the news to the rest of the media when approached. And so it is safe to assume that the judge did want the public to know that he had raised some issues with the collegium.

There can certainly be two views on whether the judge should have gone public about his stand so soon after his letter and whether he should have waited for the collegium to respond to his concerns first. On the other hand, we will never know whether he had raised his concerns on previous occasions also, and whether he felt compelled to make his position known to the public only because he felt frustrated by the lack of response from his colleagues. We must presume that senior judges have a sense of circumspection, and Justice Chelameswar himself is not known for any breach of decorum.

But now that the dissension has become known, the issue raised by the judge needs to be addressed on its merits. It is necessary to make this point because there are a couple of non sequiturs that seem to be popping up among the legal fraternity. First, that the judge himself owes his different elevations to the collegium system: as a high court judge, as a high court Chief Justice and as a Supreme Court judge. Second, that he was himself a member of collegiums earlier, and could have raised his voice then. Both of these are irrelevant.

He was appointed a high court judge in 1997, in the early years of the collegium dispensation, which started with the Second Judges case in 1993. Does he, therefore, forsake his right to speak out, and up, or abdicate what he perceives to be his public duty because of the origin of his appointment? And do we know what his approach was in the high court collegiums of which he was a member or chairperson? Justice Chelameswar became a member of the “apex” collegium 

in December 2015, when he became fifth in seniority among the judges of the Supreme Court. When he joined the collegium, the NJAC judgment had already been delivered, with the NJAC having been struck down by the majority of the Constitution Bench and with the collegium system reaffirmed. Justice Chelameswar was the lone dissenter.

Significantly, notwithstanding a divided verdict on the validity of the NJAC, all members of the Constitution Bench were on the same page as far as the need for reform in the procedures of the collegium was concerned. Thus, after the main judgment was delivered, the case was kept pending, for the avowed purpose of considering suggestions for improvement. Counsels were nominated to filter and collate the suggestions received. And ultimately, it was left to the government to come up with a Memorandum of Procedure. At the time of writing, this remains an unresolved issue between the government and the collegium, with the latter not agreeing to some of the former’s suggestions.

It is in this context that the issues raised by Justice Chelameswar need to be understood. In substance, he seems to be suggesting that the Supreme Court collegium is not following the procedure set out for the collegium by the court itself in the Third Judges case (1998). He seems to feel that the procedure which he is insisting on, namely circulation of proposals and recording of views would be the proper way to comply with the law of the land.

Justice Chelameswar could well be wrong in his perception of what transparency means, and his apprehensions about the procedure being currently followed could be unfounded. But his view can, and should be, countered by the Chief Justice, by a communiqué, if it is felt that he is wrong. Contrary to what the doyen of the Bar, Fali S Nariman, feels (The Indian Express, September 7, 2016) there is no breach of “judicial rectitude” by the collegium in setting the record straight. The collegium, by the court’s own creation, has become a public and constitutional institution, and there cannot be any inhibition about the head of a constitutional institution taking the public into confidence. Rectitude comes in the way of a judge defending his own judgments, nothing more.

Nariman says something disturbing in the same article. In his article titled “My unsolicited suggestion,” he suggests that Justice Chelameswar should have resigned before airing his grievance in public. He doesn’t specify whether he should have resigned from the collegium or the court, but it is legitimate to presume that he meant the latter. He says governments in power rejoice, and even attempt to step in, when there are dissensions in the higher judiciary, and especially when such dissensions are on account of judgments, not to the liking of the government of the day. But then this dissension is not on account of the NJAC judgment; it has arisen in the course of giving effect to a united view that the collegium needs to be streamlined. And if the present government is rejoicing now, won’t it exult even more if a sitting judge chooses to resign over the issue?

Over the years, former chief justices of India and Supreme Court judges have criticised the working of the collegium. They have all been questioned about their silence when they were in office and were in a position to do something about it. But now, when a sitting judge tries to do what his wisdom dictates, he is told to resign and then speak!

The writer is a Senior Advocate of  the Supreme Court

Top News

Jailed gangster-politician Mukhtar Ansari dies of cardiac arrest

Jailed gangster-politician Mukhtar Ansari dies of cardiac arrest

Ansari was hospitalised after he complained of abdominal pai...

Delhi High Court dismisses PIL to remove Arvind Kejriwal from CM post after arrest

Delhi High Court dismisses PIL to remove Arvind Kejriwal from CM post after arrest

The bench refuses to comment on merits of the issue, saying ...

Arvind Kejriwal to be produced before Delhi court today as 6-day ED custody ends

Excise policy case: Delhi court extends ED custody of Chief Minister Arvind Kejriwal till April 1

In his submissions, Kejriwal said, ‘I am named by 4 witnesse...

‘Unwarranted, unacceptable’: India on US remarks on Delhi CM Arvind Kejriwal’s arrest

‘Unwarranted, unacceptable’: India on US remarks on Delhi CM Arvind Kejriwal’s arrest

MEA spokesperson says India is proud of its independent and ...

Gujarat court sentences former IPS officer Sanjiv Bhatt to 20 years in jail in 1996 drug case

Gujarat court sentences former IPS officer Sanjiv Bhatt to 20 years in jail in 1996 drug case

Bhatt, who was sacked from the force in 2015, is already beh...


Cities

View All