The more things change, the more they stay the same. The way the Supreme Court’s neo-collegium has begun to recommend the appointment and transfer of judges only serves to confirm this adage.
The Supreme Court’s judgment last year striking down the 99th Constitution Amendment Act, and the National Judicial Appointment Commission (NJAC) Act was considered by many as a watershed event affirming its independence from the executive.
The constitution bench delivered its main judgment in the case, with a 4:1 majority, on October 16, 2015, and a consequential judgment on improving the existing collegium to recommend new appointments and transfers of judges, on December 16.
The government, and the chief justice of India, one would expect, have finalized the revised memorandum of procedure (MoP) to appoint and transfer judges, in the light of these twin judgments delivered last year. The non-finalisation of this MoP was a reason why the collegium had so far not recommended any new appointments, despite the number of vacancies in the high courts and in the Supreme Court gradually rising, threatening to disturb the justice-delivery mechanism seriously.
There was nothing to prevent the collegium, once it was revived by the October 16, 2015 judgment, from making recommendations as per the existing MoP which was being followed since 1999, after the Supreme Court’s judgment in the Third Judges case. In fact, the counsel for the lead petitioner, the Supreme Court Advocates-on-Record Association, Fali S Nariman told the bench that the collegium need not wait even for the consequential judgment, but should follow the old MoP to make its recommendations, after October 15, 2015, so that vacancies do not accumulate. The constitution bench had repeatedly made clear that it would not come in the way if the collegium wanted to meet and recommend new appointments.
However, both the then CJI, H.L. Dattu and the present CJI, T.S. Thakur, felt that propriety required the collegium not to meet and make recommendations, till the Supreme Court delivered its consequential judgment on improving the functioning of the collegium, and the revised MoP came into force after consultations between the government and the CJI.
This was because during the hearing of the NJAC case, the constitution bench acknowledged that there were many flaws in the functioning of the collegium that had eroded its credibility and required reform. Therefore, if new appointments and transfers were to be recommended under the old system, the appointees and the transferees would carry the same taint, which marred the image of the previous collegium, it was felt.
Although this explanation offered by Chief Justice Thakur made sense, the collegium soon had to meet and recommend transfers and new appointments, faced with the reality that revising the MoP was bound to take time – because of the requirement of consultation with all stake-holders, including state governments.
But having waited so long, and with reports suggesting that the revised MoP, after the required consultations with all the stake-holders, was almost finalised, should not the neo-collegium follow the revised MoP before making its recommendations public?
The constitution bench, in its consequential judgment in the NJAC case, out of deference to the government, said: “The Government of India may finalize the existing Memorandum of Procedure by supplementing it in consultation with the CJI. The CJI will take a decision based on the unanimous view of the collegium comprising the four seniormost puisne judges of the Supreme Court.”
The bench was careful not to call it a revised MoP, although if the factors suggested by the bench are taken into consideration, it would amount to a substantial revision.
The bench appears to have used “may” rather than “shall”, as the matter involves consultation among constitutional functionaries, including those in responsible positions in the Central and state governments and the members of the collegium.
What the court had itself indicated
Five factors were held by Supreme Court’s own consequential judgment to be very important.
First, the MoP, the bench said, may indicate the eligibility criteria, such as minimum age, for the guidance of the collegium (both at the level of the high court and the Supreme Court) for appointment of judges, after inviting and taking into consideration the views of state governments and the Government of India (as the case may be) from time to time.
Second, the eligibility criteria and the procedure as detailed in the MoP for the appointment of judges ought to be made available on the website of the court concerned and on the website of the Department of Justice of the Government of India. The MoP, the bench said, may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the judges in the collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of judges.
Third, in the interest of better management of the system of appointment of judges, the MoP may provide for the establishment of a secretariat for each high court and the Supreme Court and prescribe its functions, duties and responsibilities, the bench had said.
Fourth, the MoP, the bench said, may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a judge.
Fifth, the bench said, the MoP may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommended persons by the collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.
If the new MoP – whether you call it revised, or existing, but supplanted – includes these factors suggested by the bench, they were nowhere in display in the collegium’s recent recommendations of appointments of four judges to the Supreme Court.
Worse, if media reports are any indication, the draft MoP included a clause to empower the government to reject a recommendation of the collegium in the national interest, and in the interest of the security of the state. In the absence of transparency, one does not know whether this clause remains in the final draft.
The three high court udges whom the neo-collegium has recommended for elevation – Justices A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan– may indeed satisfy the eligibility criteria envisaged under the MoP, as they are senior-most in the all-India ranking of high court judges. The fourth judge to be nominated is senior advocate of the Supreme Court, L. Nageswara Rao
But the recommendations, on the face of it, fail to satisfy the other factors mentioned in the December 16, 2015 consequential judgment, and therefore, raise the question of whether the efforts of the constitution bench to reform the collegium have gone in vain.
The controversial transfer of the chief justice of the Uttarakhand high court, K.M. Joseph, to Hyderabad, also recommended by the collegium, close on the heels of his quashing of president’s rule in Uttarakhand (which is now under challenge before the Supreme Court) sends ominous signals. It is true that the consequential judgment in the NJAC case is silent on the proper guidelines to be followed in the case of transfers recommended by the collegium. But, as in the case of the other two controversial recent transfers, namely, Rajiv Shakdher (from the Delhi high court to the Madras high court) and Justice Abhay Mahadeo Thipsay (from the Bombay high court to the Allahabad high court), Justice Joseph’s transfer only cements doubts about the fairness of the collegium.