by Harish Gupta, National Editor, Lokmat Group
The harmonious relation between the two arms of the republic received the first jolt in the 1960's when the government adopted a socialist view on property rights and nationalisation of above-ceiling land became the order of the day. The court took an adverse view of the matter and the government felt that the judges, instead of being "property-minded", should be "forward-looking". It was since then that the government and the judges ceased to sea eye to eye and there were many instances of the CJI blocking candidates close to government.
As skirmishes became regular between the two wings, finally coming to a head with the Law Minister issuing a circular to make HC judges give an undertaking that they may be transferred to other states, the judiciary responded in a rather unexpected way, in the S. P. Gupta case of 1981, known as 'First Judges case', majority of the seven-judge bench held that the CJI's opinion in the appointment of Supreme Court and High Court should not get primacy. It gave the executive an edge and judges looked like having scored a self-goal. Justice P. N. Bhagwati, who headed the majority, got a taste of his own medicine after becoming CJI in July 1985 when the President did not accept any of his recommendations for appointment as judge of either the Supreme Court or High Courts.
It is following the Second Judges case in 1993 that the present collegium system actually began. The majority judgment (7:2) in the case was delivered by CJI J. S. Verma clearly stated that the judgment in the S. P. Gupta case was unsupportable. It held that the doctrine of primacy would now include the opinion of the CJI and two of his senior-most colleagues on the bench. This judgment installed the present opaque system of appointment and transfer in the higher judiciary, with no minutes of discussion of consultation available for executive scrutiny.
It remained the sore point till 1998, when present Finance Minister and architect of NJAC Act Arun Jaitley was the Law Minister. At his initiative President K. R. Narayanan sought review by the Supreme Court (then headed by CJI M. M. Punchhi) of three broad issues arising from Second Judges case. These are: (a) consultation between CJI and brother judges for SC/HC appointments, (b) judicial review of transfer of judges, and (c) relevance of seniority of HC judges in their appointment to the Supreme Court.
The petition, however, hit a stone wall. The collegium system persisted. The unanimous bench only made the cosmetic change of expanding it to five judges (CJI and four senior-most brothers). The ills of this system have been best described by Justice J. Chelameswar, the lone dissenting judge on the recent five-judge bench that turned down NJAC. According to him, there were instances "where the collegiums of this Court quickly retraced its steps", having rejected a name recommended by the High Court collegium. "There is no accountability ...The records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India”.
Dismissal of govt's case on NJAC points at a glaring structural defect that successive governments have failed to fix, last week's adverse judgment being the latest.
The words remind the line from “Hamlet”, that “something is rotten in the state of Denmark”. In the past few years, the apex court has been anything but consistent, be it on telephone spectrum allocation or pricing of natural gas, or Mayawati, Mulayam Singh Yadav cases and such flip-flop have contributed to political and economic instability. Jaitley is now protesting as he says that if independence of the judiciary is a part of the “basic structure” of the Constitution, so is the right of the legislature to make laws. Of course he is right when he says that the courts can’t legislate. But his party should have been active between the “Third Judges” case in 1998 and ten years of UPA instead of reaping the benefit of the Congress party’s discomfiture in courts. Rather than giving their Lordships another opportunity to expand the collegiums, may be by two more members, on November 3 when they have sought “advice” on how to improve the collegium system, the Narendra Modi government should now come up with a clear plan to remove the shroud of secrecy around them. If legislators must declare their assets, why should it not apply to judges? How is their “independence” a shield against transparency?
A piquant situation has arisen following the Supreme Court of India turning down the government's move to have a say in the appointment of judges, rather than leaving it to a "collegium" of judges, something unique for India. It may not turn into a crisis straightaway, as there is little the executive can do in retaliation, its hands being tied by the Constitution and its doctrine of "separation of powers". But it will no doubt lead judges and politicians one step further down the warpath. It will no doubt cause bad blood that may have cascading effect in the future on growing unpredictability of court decisions on contentious governance issues, or a tendency of the court to cross the limit in interfering with executive matters. But, more than creating roadblocks for the administration, the dismissal of the government's case on NJAC points at a glaring structural defect that successive governments have failed to fix, last week's adverse judgment being the latest.
A quick recap should be pertinent. Art 124(2) says that the President shall "appoint judges" of the Supreme Court after consultation with such of the judges of the Supreme Court and the High Courts in the states as the president may deem necessary. Similarly, under Art 217 (1), every judge of the High Court shall be "appointed by the President" after consultation with the Chief Justice of India, the Governor of the state, and the Chief Justice of the concerned High court. As the "consultation" in this case neither implied concurrence nor was required to be transparent, the executive could freewheel around in packing the bench with its people. Jurist Fali Nariman, in his autobiography, Before Memory Fades, has mentioned that, between 1950 and November 1959, the Supreme Court saw 19 judges being appointed, and each of them was recommended by the Chief Justice of India. In the same period, the High Courts witnessed 211 new judges, of whom all but one were appointed on the advice of the CJI.
The harmonious relation between the two arms of the republic received the first jolt in the 1960's when the government adopted a socialist view on property rights and nationalisation of above-ceiling land became the order of the day. The court took an adverse view of the matter and the government felt that the judges, instead of being "property-minded", should be "forward-looking". It was since then that the government and the judges ceased to sea eye to eye and there were many instances of the CJI blocking candidates close to government.
As skirmishes became regular between the two wings, finally coming to a head with the Law Minister issuing a circular to make HC judges give an undertaking that they may be transferred to other states, the judiciary responded in a rather unexpected way, in the S. P. Gupta case of 1981, known as 'First Judges case', majority of the seven-judge bench held that the CJI's opinion in the appointment of Supreme Court and High Court should not get primacy. It gave the executive an edge and judges looked like having scored a self-goal. Justice P. N. Bhagwati, who headed the majority, got a taste of his own medicine after becoming CJI in July 1985 when the President did not accept any of his recommendations for appointment as judge of either the Supreme Court or High Courts.
It is following the Second Judges case in 1993 that the present collegium system actually began. The majority judgment (7:2) in the case was delivered by CJI J. S. Verma clearly stated that the judgment in the S. P. Gupta case was unsupportable. It held that the doctrine of primacy would now include the opinion of the CJI and two of his senior-most colleagues on the bench. This judgment installed the present opaque system of appointment and transfer in the higher judiciary, with no minutes of discussion of consultation available for executive scrutiny.
It remained the sore point till 1998, when present Finance Minister and architect of NJAC Act Arun Jaitley was the Law Minister. At his initiative President K. R. Narayanan sought review by the Supreme Court (then headed by CJI M. M. Punchhi) of three broad issues arising from Second Judges case. These are: (a) consultation between CJI and brother judges for SC/HC appointments, (b) judicial review of transfer of judges, and (c) relevance of seniority of HC judges in their appointment to the Supreme Court.
The petition, however, hit a stone wall. The collegium system persisted. The unanimous bench only made the cosmetic change of expanding it to five judges (CJI and four senior-most brothers). The ills of this system have been best described by Justice J. Chelameswar, the lone dissenting judge on the recent five-judge bench that turned down NJAC. According to him, there were instances "where the collegiums of this Court quickly retraced its steps", having rejected a name recommended by the High Court collegium. "There is no accountability ...The records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India”.
Dismissal of govt's case on NJAC points at a glaring structural defect that successive governments have failed to fix, last week's adverse judgment being the latest.
The words remind the line from “Hamlet”, that “something is rotten in the state of Denmark”. In the past few years, the apex court has been anything but consistent, be it on telephone spectrum allocation or pricing of natural gas, or Mayawati, Mulayam Singh Yadav cases and such flip-flop have contributed to political and economic instability. Jaitley is now protesting as he says that if independence of the judiciary is a part of the “basic structure” of the Constitution, so is the right of the legislature to make laws. Of course he is right when he says that the courts can’t legislate. But his party should have been active between the “Third Judges” case in 1998 and ten years of UPA instead of reaping the benefit of the Congress party’s discomfiture in courts. Rather than giving their Lordships another opportunity to expand the collegiums, may be by two more members, on November 3 when they have sought “advice” on how to improve the collegium system, the Narendra Modi government should now come up with a clear plan to remove the shroud of secrecy around them. If legislators must declare their assets, why should it not apply to judges? How is their “independence” a shield against transparency?
