New Delhi: In the ongoing hearing of challenges to the National Judicial Appointments Commission (NJAC) and the 99th Constitution Amendment Act, Attorney General Mukul Rohtagi made a startling disclosure. On June 12, he said that one of the judges of the Supreme Court, appointed by the now defunct collegium system, “could not write even 100 judgments in his entire career”, and that hundreds of judgments were reserved by him but not delivered.
This invited a riposte from Justice J.S. Khehar, who leads the five-judge Constitution Bench hearing the matter. Khehar asked how it was that the same judge was then found suitable by the government – after his retirement from the Supreme Court – for appointment as a member of the National Human Rights Commission (NHRC).
Justice Khehar also claimed that this particular judge was appointed to the Supreme Court following the principle of ‘due representation to different sections of society’ which the government also intends to adopt under the NJAC.
While it is bizarre to suggest that a person who is otherwise not suitable to be made a judge could be appointed to the Supreme Court simply in order to give effect to this principle, the facts regarding this particular judge must make the erstwhile collegium introspect about its decision to appoint him to the Supreme Court in the first place.
Although the AG and the bench avoided mentioning the judge’s name, it was amply clear to those in the court room that the person being referred to is Justice Cyriac Joseph, who is currently the Acting Chairperson of the NHRC.
On June 12, both the AG and Justice Kurian Joseph (on the Constitution Bench) were seen disputing the correct number of judgments authored by Justice Cyriac Joseph as a High Court judge.
Justice Cyriac Joseph had served as a judge in the Kerala, Delhi, and Uttaranchal (now Uttarakhand) High Courts and was the Chief Justice of the Karnataka High Court, before his elevation to the Supreme Court.
However, it is the number of judgments he delivered as a Supreme Court Judge which is of interest to analysts of the Indian judicial system. It turns out that Cyriac Joseph authored only seven judgments during his tenure as a Supreme Court judge from July 7, 2008 to January 27, 2012.
Against this backdrop, the question posed by Justice Khehar remains: how then did Cyriac Joseph make it to the NHRC?
A recent book, Constitutional Conundrums: Challenges to India’s Democratic Process, authored by V.Venkatesan, and published by Lexis Nexis (2014) helps provide the answer because it has brought into the public domain the proceedings of the NHRC selection committee which recommended Justice Cyriac Joseph for appointment as a member of the NHRC in 2013.
The NHRC is a nine-member body comprising the Chairperson, who has to have been a former Chief Justice of India, one former Supreme Court judge, one former Chief Justice of a High Court, and two members having knowledge of, or practical experience in, human rights. The chairpersons of the National Commission for Minorities, the National Commission for Scheduled Castes, National Commission for Scheduled Tribes and National Commission for Women are ex-officio members. Currently, the posts of the Chairperson and a member having “knowledge or practical experience in human rights” are vacant.
The selection committee to recommend the names of members of NHRC for appointment by the President comprises the Prime Minister, the Home Minister, the Speaker of the Lok Sabha, the Deputy Chairperson of the Rajya Sabha, the Leader of Opposition in the Lok Sabha and the Leader of Opposition in the Rajya Sabha.
In 2013, the Manmohan Singh government made two appointments to the National Human Rights Commission – S.C.Sinha and Justice Cyriac Joseph – overruling the dissent of two members of the selection panel, Arun Jaitley and Sushma Swaraj. Sinha was a police officer who had headed the National Investigation Agency.
The selection panel, as Jaitley’s dissent shows, had the names of three retired judges before them, namely, Justice Cyriac Joseph, Justice B. Sudershan Reddy and Justice V.S. Sirpurkar, for nomination under the category of ‘judicial member who has been a Supreme Court judge’. Jaitley wrote that Justice Cyriac Joseph was completely unsuitable for the job.
Jaitley wrote about Justice Cyriac Joseph: “As a judge, he was known for not writing judgments. As against a few hundred judgments authored by every judge of the Supreme Court, Justice Cyriac Joseph is believed to have written only six judgments. He has been, even during his tenure as a judge, perceived to be close to certain political and religious organisations…”
Jaitley further wrote in his dissent: “When there are other eminent names of retired judges eligible for appointment available, which include Justice B. Sudershan Reddy and Justice V.S. Sirpurkar, suggested by the government, and Justice Ravindran, Justice H.S. Bedi, Justice Deepak Verma as suggested by some of us, I am unable to persuade myself to concur to the appointment of Justice Cyriac Joseph as a member of the NHRC”.
Sushma Swaraj wrote tersely in her dissent: “Integrity and competence are essential for public office. The proposed name lacks both. Therefore, I disagree.”
The dissents were dated May 16, 2013.
The minutes of the meeting of the selection committee, also dated May 16, 2013, marked as ‘Secret’, merely mention that the committee, after due deliberations and having regard to the provisions of the Protection of Human Rights Act, 1993, decided to recommend the name of Justice Cyriac Joseph for appointment as a member of the NHRC, and that the leaders of the opposition from both the houses dissented, and their notes of dissent appended.
The minutes of the meeting of the selection committee for recommending S.C. Sinha’s name to fill the vacancy of ‘member with the knowledge and experience in human rights’ also merely records the fact of dissents by both Jaitley and Swaraj, and were dated March 29, 2013.
SC guidelines flouted
What makes the two appointments dubious is that in both cases, the minutes of the meeting of the selection committee are silent on the reasons for rejecting the dissents of Jaitley and Swaraj. The dissents and the minutes of the meetings are available as annexures in Venkatesan’s book.
In Centre for PIL v. Union of India, (W.P.C.348/2010), the Supreme Court on March 3, 2011, set aside the appointment of Chief Vigilance Commissioner P.J. Thomas, even though the majority in the selection committee had recommended him. The court quashed his appointment by emphasising the concept of institutional integrity. The key test for institutional integrity, it said, is to ask whether the incumbent would or would not be able to function and whether the working of the institution would suffer following the appointment.
The Supreme Court held in the same judgment that if the selection committee decides to overrule any dissent while recommending a person for the appointment, it should record clear and cogent reasons for doing so.
In the case of the appointment of Cyriac Joseph and S.C. Sinha to the NHRC, the record shows that the government of the day flouted this crucial guideline.