The long-pending National Judicial Appointment Commission (NJAC) is now in place, to the delight of many and dismay of a few. The Collegium system was tactically created by the highest judicial authority of India to make judiciary absolutely free of the executive.
But public complaints of nepotism and bringing in unworthy judges have been piling up for long, a majority of them from the legal fraternity including top lawyers and deprived judges who could not rise. The Supreme Court collegiums comprise first five senior judges and a High Court first three. The main function being to choose and promote judges, the ‘collegium’ assumed frightening proportions of power and authority. Further, dismissing a corrupt or inefficient judge was virtually impossible as the impeachment process is very complicated, requiring a majority of the legislature voting against the accused judge.
Now, the NJAC can be easily influenced by the executive as the law Minister is a core member. The politicians, mostly with horribly mean vested interest, will exert enormous pressure on the commission in the appointment, transfer and promotion of judges of all 24 High Courts and the Supreme Court. The NJAC is to be headed by the Chief Justice of India with two more SC judges, the law Minister and two eminent citizens as members. The Ministry of law and Justice Secretary would be the ex-officio member-secretary. The demand for including the leaders of Opposition in both Houses as core members has been ignored. The Cabinet has cunningly put only the leader of Opposition of lok sabha in a peripheral committee to help select the two eminent citizens. Interestingly, this committee, expected to select fit citizen-members, will also have the Prime Minister and the CJI as members, thereby rendering the Opposition leaders mute onlookers rather than active co-decision makers. The executive would not be in trouble ever!
Almost interestingly, the two eminent citizen members can last only for three years and can never return. One of them has to be a woman or from the minority community or SC/ST /OBC. These eminent citizens can play a pivotal role of taking commands of the executive entities. Horribly masked monsters are likely to be inducted to lend unethical support to erring members.
The functions of the JAC also include ensuring the would-be judges are efficient and of highest integrity. Recommended candidates can be dropped if any of the two members say “No”.
The Collegiums system was born one fine morning quite within the precincts of the Supreme Court. Selecting, transferring and promoting judges at all higher levels became the exclusive right of the collegium. The collegium came into being on October 6, 1993 as a result of a ‘Judicial legislation’ by a majority judgment in what is called the Second Judges Case. Justice Venkatchaliah, who was not a member of the nine-judge Bench which passed the strangest law, was incidentally the CJI who had to put his endorsement as per routine. Eminent jurist HM Seervai had described the ruling as null and void since it grossly violated the Constitutional norms. The executive remained mute lest a controversy would put it in trouble. Many brilliant judges did not have much scope to fight the collegiums in any court of law, when wronged, simply due to being a mere minority. But interestingly, the sitting Gujarat High Court Chief Justice Bhaskar Bhattacharya did openly challenge the system. He was not elevated to the SC for opposing Justice Kabir’s sister’s nomination to become a Calcutta High Court judge. The collegium had grown all powerful and the senior-most judges constituting the body had turned Demi-lords calling shots with regard to elevation and transfer of judges. Several extremely worthy judges could never rise higher. Sycophantic, subservient judges got faster elevations and choice transfers. The victim judges could do nothing except resign to fate.
The first victim of the system was Justice Ul Bhat, a most magnificent judge who displayed unique judicial rectitude and courage. He was one of the most brilliant minds among the Indian judicial community. Despite being a senior jurist, he never saw the corridors of the Supreme Court. Justice Venkatchaliah went to break the unpleasant news to Justice Bhat when he and his wife were at a nature-based healthcare centre in Bangalore. The Collegium judges rejected him for being irreverent to superiors and he became the first martyr of the Collegium system. Kerala HC Chief Justice Paripoornan, two years Bhat’s junior, superseded him to the SC. Paripoornan became Patna HC CJ on in January 1994, and during the summer of the year, the CJI recommended him to the SC. The same fate had befallen Justice GP Singh. Justice Bhaskar Bhattacharya had felt miserable that GP Singh and Bhat, two best legal minds, were just discounted. The SC, lawyers and the litigants, all alike, lost badly as less worthy judges climbed onto the chairs. George Gadbois, in his book Judges of the Supreme Court of India, describes the GP Singh victimisation, “Justice Singh had an excellent reputation, but he had turned afoul of the Congress Government in Madhya Pradesh for refusing to accept some nominees for judgeship.” Similarly, Justice KT Thomas says Justice Bhat was an outstanding judge, to which even his bitter critics agreed. Not surprisingly, there has been demand by the legal community including HC judges to select judges from the SC Bar and HC Benches; not only from among the HC Chief Justices, but the collegiums would not listen. The first collegium comprised Justices Venkatchaliah, S Ratnavel Pandian and AM Ahmadi.
The executive has not been able do much for reasons well-known. Even the impeachment of erring judges has remained nearly an impossible task due to the requirement of concurrence from a big chunk of both the Houses of Parliament. Further, the judges under scrutiny simply resigned at opportune moments to escape unscathed. Justices Sen and Dinakaran are bright examples. KG Balakrishnan is yet another. Top judges have said openly that the collegiums are dark bodies shrouded in mystery right from the day they came into existence. Rightly therefore, Justice Ruma Pal publicly said the appointment of judges into the superior courts is probably the country’s “best kept secret”.
Article 124 deals with the appointment of SC judges, saying the appointment be made by the President after consulting such judges of the High Courts and the SC as the President may deem fit. However the CJI would have to be consulted on all appointments except when he or she is being considered for the post. Similarly, Article 217 makes clear how HC judges are to be chosen. The President is to consult the CJI, and the Governor and the Chief Justice of the concerned State before finalising the candidate.
The Collegium system has not worked very well. Now, the executive-driven NJAC is likely to mess up the selection process. Undeserving people will now enter the SC in larger numbers than before. Government-sponsored slaves will be judges to extend protection to politically-empowered thugs. The seemingly conscious academicians, columnists, activists, the so called civil society have to raise arms. A little alertness among the masses can ensure good people taking over important reins. After all, ours is an age of high technology. Everyone can know everything instantly with the press of a tiny button. Opacity can become a relic of the past. Grumbling at home will not yield any result. People can question all wrong decisions by the executive, best by provoking courts through PIls.
(The writer is a core member of Transparency International, Odisha)