The collegium appears divided on the issues of transparency and government influence in the judge selection process, further aggravating the burden on the Supreme Court.
The Supreme Court’s collegium, comprising the five senior-most judges of the court, has only itself to blame if it has been unable to fill its eight vacancies in time. With a sanctioned strength of 31 judges, the court has been functioning with just 23 judges since January 3, when the former chief justice of India, T.S. Thakur, retired.
With three more judges, including the Chief Justice J.S. Khehar, set to retire this year, the collegium ought to be recommending 11 judges – eight who could join the court immediately and three to join once the expected vacancies arise in May and August. Chief Justice Khehar is retiring on August 27, while Justices Pinaki Chandra Ghose and Prafulla Chandra Pant retire on May 27 and August 29 respectively.
As Supreme Court judges retire at the age of 65, their dates of retirement are easily anticipated and the prospective judges to replace them could be recommended by the collegium well in time.
However, reports suggest that the new collegium, after the assumption of office Khehar as chief justice on January 4, could only finalise the recommendations of five judges.
Of them, four are chief justices of high courts – Justices Sanjay Kishan Kaul (Madras), Deepak Gupta (Chhattisgarh), Navin Sinha (Rajasthan) and Mohan Shantanagoudar (Kerala). The fifth judge to be recommended is Justice Abdul Nazeer of the Karnataka high court.
In the legal circles, four more names are mentioned as possible candidates in the zone of consideration by the collegium. They are currently chief justices of four high courts. They are Justices Manjula Chellur (Bombay), Paul Vasanthakumar (Jammu and Kashmir), G. Rohini (Delhi) and K.M. Joseph (Uttarakhand).
Obviously, the collegium could not achieve consensus on the remaining names, besides the five. The collegium, apart from the Chief Justice Khehar also comprises Justices Dipak Misra, J. Chelameswar, Ranjan Gogoi and Madan B. Lokur.
Reports also suggested that Justice Chelameswar, who has not been attending the meetings of the collegium as a mark of protest against its lack of transparency, has written a strong note of dissent against the non-recommendation of Justice Joseph, who he has described as an outstanding judge.
In his note, Justice Chelameswar especially mentioned Justice Joseph’s impeccable integrity and admirable competence as qualities that ought to have been considered by the collegium.
Justice Joseph, who was short-listed by the erstwhile collegium headed by former Chief Justice Thakur, has apparently not made it to the final list prepared by the current collegium for inexplicable reasons. Reasons speculated in the legal circles include Justice Joseph’s quashing of the imposition of President’s rule in Uttarakhand, which was stayed by the Supreme Court, and his non-transfer to the Hyderabad high court, despite the collegium’s recommendation.
The Campaign for Judicial Accountability and Reforms (CJAR) has come out in support of Justice Chelameswar’s dissenting note, criticising Justice Joseph’s non-elevation. In CJAR’s view, Justice Joseph has had an outstanding record as an independent judge of high integrity and holding secular views. “It is apparent that his non-elevation has been influenced by pressure from the government,” CJAR noted in a press release.
CJAR has also expressed its concern that the collegium is finalising the new memorandum of procedure (MoP) to appoint judges of the high courts and the Supreme Court, in consultation with the government without the participation of the civil society.
The process of revising the MoP has been inordinately delayed since December 2015, when the Supreme Court’s constitution bench directed the government to submit a draft MoP to the collegium in light of its October 2015 judgement scrapping the National Judicial Appointments Commission (NJAC), followed by another one recommending changes in the MoP.
These changes were aimed to bring in transparency, eligibility criteria, a secretariat, a mechanism to handle complaints and interaction with the recommendees by the collegium.
The inordinate delay in finalising the MoP gave rise to the apprehension that the government sought to dilute the primacy of the judiciary in the appointment process by tweaking the new MoP in favour of the executive. With the collegium keeping its role in finalising the MoP under wraps, the petitioners in the NJAC case are rightly worried that their hard-earned victory may be reversed after all if the government gets an upper hand in the revised MoP.
It has been pointed out that three members of the current collegium were also on the five-judge bench that delivered the NJAC judgement. Of them, Justice Chelameswar was the lone dissenter in that judgement, having supported the NJAC. Chief Justice Khehar and Justice Lokur were the other judges.
Ironically, it is Justice Chelameswar who is now batting for transparency of the collegium and against the possible indirect influence of the government in the collegium’s selection process, as reflected in the non-selection of Justice Joseph. The erstwhile defenders of transparency in the NJAC case, on the contrary, appear to be least concerned about the lack of transparency in the collegium today, despite being in a position to tilt its scales in favour of the wholesome principles which they once stood for.