Judiciary faces a crucial test

BRP Bhaskar
Gulf Today

India’s Supreme Court, ostensibly the world’s most powerful judicial institution, is in the grip of a crisis following its four senior-most judges’ public disapproval of the manner in which Chief Justice Dipak Misra distribute work among the judges.

When the Constitution came into force in 1950 the Supreme Court had only seven judges and they sat together to hear cases. As the workload increased and the number of judges was raised, they began sitting in benches of two or more judges to hear and decide cases. 

The Constitution vests the power to appoint judges of the Supreme Court and the High Courts in the President. Since he acts on the advice of the council of ministers, the Executive enjoyed primacy in the process, although it was mandatory to consult the Chief Justice of India in making appointments to the apex court and the Chief Justice of the high court concerned in making appointments to that court.

Between 1982 and 1998, the Supreme Court, through three judgements, arrogated the right to select judges to a collegium comprising the CJI and his four senior-most colleagues. The deep division in the polity having weakened the Executive and the Legislature, they had no option but to accept the situation. The Executive’s role in the appointment and transfer of judges became one of passing on the collegium’s decisions to the President as its own recommendations. 

In the process India earned the dubious distinction of being the only country where judges appoint judges. Several eminent jurists said this was not a happy situation but successive CJIs and their senior colleagues were keen to preserve their newly acquired clout.

The Manmohan Singh government planned to amend the Constitution and enact legislation to abolish the court-mandated collegiums and create a National Judicial Appointments Commission to select judges. However, it could not complete the process. 

After the change of government in 2014, Prime Minister Narendra Modi picked up the thread and Parliament passed the NJAC Act. However, the NJAC could not be brought into being as the CJI, who had a key role in it, refused to cooperate. 

The Supreme Court subsequently struck down the NJAC Act as unconstitutional by a 4:1 judgement and restored the collegiums. Justice J Chelameswar, the lone dissenter among the five judges who heard the matter, criticised the collegium system for its lack of transparency. Later he stayed away from collegium meetings. That held up judicial appointments and forced the Court to reform the system. 

Last November a bench headed by Justice Chelameswar heard a petition seeking the setting up of a special team to conduct court-monitored investigation of alleged bribery involving the Medical Council of India. The Central Bureau of Investigation arrested a retired Odisha high court judge in one of the MCI scam cases.

According to the first information report filed by the CBI the ex-judge had assured the management of a private medical college, which had been barred from making fresh admissions as its facilities were substandard, that the Supreme Court would settle the matter in its favour. Justice Dipak Misra had headed the bench which heard all MCI scam cases.

Against this background the petitioner pleaded that Justice Misra should not be part of the bench which hears the matter. Justice Chelameswar referred the matter to a five-judge Constitution bench. 

The next day Justice Misra asserted that as the CJI he was the master of the roster and it was his sole prerogative to decide which bench should hear a case. He nullified Justice Chelameswar’s order and constituted a new five-judge bench to hear the petition.

Another issue that prompted Justice Chalameswar and the other senior judges to air their differences with Justice Misra publicly was his practice of bypassing them and referring sensitive political cases to benches headed by junior judges. At a press conference one of them conceded that the assignment of a petition seeking probe into the death of CBI court judge R H Loya to a bench headed by Justice Arun Mishra, a comparatively junior judge, triggered their protest. 

Loya was hearing a fake encounter case in which Bharatiya Janata Party President Amit Shah was an accused. His sister said that before his death he had told her of a bribe offer of Rs 1 billion for an order favouring Shah.

The differences between the CJI and his colleagues have a bearing on the administration of justice. The way it is resolved will determine whether the apex court can function without external influences.

Self-perpetuating judiciary

BRP Bhaskar
Gulf Today

The Supreme Court last week opened the door a wee bit to make known to the public how judges are appointed and transferred but the basic weakness of the process remains unaddressed.

The Constitution which came into force in 1950 empowered the President to appoint the Chief Justices and judges of the superior courts after consultations with such judges as he may deem necessary. Since he is required to act on the advice of the Council of Ministers, the Executive had primacy in the process.

In 1982, the Supreme Court ruled that the recommendation of the Chief Justice of India to the President will have primacy but conceded it could be refused for “cogent reasons”.

Through a 1993 judgment it brought into being institutions called collegiums of judges, comprising the Chief Justice and the seniormost judges, to formulate recommendations with regard to appointments and transfers of judges.

In 1998 AB Vajpayee’s government, through a presidential reference, sought reconsideration of the matter by the court. If it expected the court to moderate its position, that didn’t happen.

The three Court decisions upset the constitutional system of mutual checks and balances and made India’s Judiciary the only one in the world with the authority to choose its personnel. The Executive’s role in the appointment of judges was reduced to that of a postman through whom the CJI conveyed the collegium’s decisions to the President.

The changes came about when the Executive was patently weak.

The issue was debated in public forums and a political consensus emerged over the creation of a National Judicial Appointments Commission in which both the Executive and Judiciary will be represented. The Manmohan Singh government drafted a bill to set up the NJAC but was voted out before it could be taken up in Parliament.

Within three months of assumption of office Prime Minister Narendra Modi pushed through both houses of Parliament a constitutional amendment as well as a regular law. They provided for a six-member NJAC, comprising the CJI and his two seniormost colleagues, the Union Law Minister and two eminent persons to be nominated by a committee comprising the CJI, the Prime Minister and the Leader of the Opposition.

Although the Judiciary had an edge over the Executive in the NJAC the CJI blocked its formation by declining to serve on it as also to join the PM and the Opposition leader in the selection of its two independent members. A five-judge bench presided over by the CJI struck down the new enactments as unconstitutional and restored the collegium system.

It soon came to light that the collegium was not working the way it was supposed to work. Justice J Chelameswar, a member of the Supreme Court collegium, said successive CJIs had treated collegium members as supplicants and judges had been selected on personal requests of collegium members. He refused to attend collegium meetings and limited his participation in the process of selection of judges to submitting written comments on circulated minutes of its meetings.

Fresh questions about the working of the collegium arose last month when High Court judge Jayant Patel resigned after he was transferred twice, denying him the opportunity of becoming the Chief Justice. While at the Gujarat High Court he had ordered the Central Bureau of Investigation to probe the encounter killing of a teenage girl Ishrat Jahan and three others.

It was against this background that the collegium headed by Dipak Misra, who became the CJI last August, decided to go public with its decisions. Accordingly a statement was uploaded on the court’s website outlining the reasons why the collegium rejected three names and deferred decision on one while selecting six new judges for the Madras High Court.

The post indicated that there were adverse Intelligence Bureau reports on the professional and personal image of two candidates and that the third was facing an inquiry. All three are members of the subordinate judiciary and the published information raises the question whether they are fit to hold their present jobs. It is not known if those rejected on the basis of intelligence reports were given the opportunity to counter them.

The legal fraternity welcomed the development but some of them felt it did not go far enough. “What is the transparency here?” asked former Law Commission Chairman Justice AP Shah. He wanted the names of prospective judges to be revealed before the collegium took decisions.

The collegium system suffers from weaknesses which cosmetic measures cannot cure. If it is not democratic for a bunch of ministers or parliamentarians to pick the next lot to be entrusted with their responsibilities, how can it be democratic for a bunch of judges to do so? A closed system cannot ensure diversity and democratic accountability. --Gulf Today, Sharjah, October 10, 2017.