The corridors of the Supreme Court along with the larger political spectrum is abuzz with an interview, by a former seniormost puisne judge of the Supreme Court of India. The interview has eventually come to be sensational. The tussle and battles between Court 1 and Court 2 of the Supreme Court (connotations used for the courts where the Chief Justice and the Seniormost puisne judge hold their judicial sittings) are not new to these corridors, which have seen several of them—from sweet to fierce!
They are reflected in the administrative disagreements, judicial dissents, sometimes through an unusual press-conference, and these days often through post-retiral interviews. On the lighter side of things, they may even be seen in decisions like whether the corridors of the court should have glasses or not! Such issues may, though sound trivial, but best speak of the state of affairs of the institutional decision making. This is in the sense that not just Bar, even the court (judges) is not taken into confidence in the process of decision making by the first amongst equals (the Chief Justice) on the administrative side.
The timing of Justice Sanjay Kishan Kaul’s interview cannot be questioned—neither for motive, nor by drawing equivocations. Sitting judges shouldn’t be speaking much about the affairs of judiciary while being in the office. Judicial discipline ranging from Bangalore principles to past precedents warrant that. The timing of Justice Kaul’s interview is apt—much after cooling off needed, while also ensuring that it will not impact the institution in any manner as it is also almost two years since the concerned CJI retired, with his third successor in office.
Justice Kaul was someone, who while sitting together on the judicial side, mostly concurred with Justice D.Y. Chandrachud. Even in the interview, he has only raised the concerns pertaining to the administrative side.
Judicial appointments have always been the first thing to be discussed at the interface of executive and judiciary in this country. Questions of propriety hang writ large in almost every fathomable mode of appointments possible. The appointments have also been amongst the foremost reasons of confrontation between the two organs of the state. A confrontation which ultimately led to the advent of the much-debated Collegium system in nineties. Even as recently as in 2015, when the National Judicial Appointment Commission for appointment of judges was sought to be brought in by the government through a constitutional amendment, it was struck down by a five judges’ Constitution Bench of the Supreme Court. It remains the only constitutional amendment to be struck down fully by the judiciary. In the interregnum, the appointments to the high courts remained stalled for almost two years.
Around the year 2020-21, the high courts in the country were working at less than fifty percent of the sanctioned strength. At one point, the Patna High Court had mere 19 judges against the sanctioned 53.
The requirement of reforms in judicial appointments is the bottom-line in the debate which no one can disagree with despite the fact that there might have reasons to point at merits and demerits of every possible system including the Collegium.
The Collegium system has failed to reform internally, with the tendency of taking one step forth for taking two steps back. There have been self-acclaimed attempts to bring transparency in the functioning of Collegium, only to be subsequently replaced with greater opacity. In October 2017, Justice Dipak Misra led Collegium decided to publish reasons for transfer/appointment along with collegium resolutions. It was a welcome decision. But as soon as he demitted the office, the practice was given a go bye by his successor Justice Ranjan Gogoi (the poster boy of presser by four judges).
A much larger controversy came to fore when in December 2019. The Collegium led by Justice Gogoi recommended appointment of Justice Rajendra Menon and Justice Pradeep Nandrajog as Supreme Court judges. This resolution was, however, superseded in a matter of days. Justice Dinesh Maheshwari and Justice Sanjiv Khanna were recommended for elevation. The two judges recommended earlier were never elevated. This was unusual, unprecedented and created a huge uproar.
Justice Kaul, a sitting Supreme Court judge then, wrote to the CJI noting his dissatisfaction. A recent practice that has evolved over the past few years is of picking and choosing from the Collegium recommendations. The government clears few names while leaving others. This raises serious questions of judicial independence and also ultimately impacts the seniority of judges being appointed. A bench led by Justice Kaul was extremely critical of this attitude by the government and was passing directions regularly, but the matter was suddenly taken out of the Bench—which Justice Kaul also mentions about in the interview.
Interestingly, a similar practice of giving reasons was reintroduced by Justice Chandrachud. During his time the Centre for Law and Policy Research of the Supreme Court was also involved in researching about the credentials of the individuals and judges. Their judgments were also said to be assessed by Senior Judges of the Supreme Court. However, in absence of a clear and transparent method, merely giving reasons cannot suffice. Once a name is chosen, reasons can always be supplied and, devised for justification. Moreover, the successors of Justice Chandrachud in office again resorted to resolutions stating merely the names recommended.
The author is not going into reasons behind inclusion and exclusion of specific names, which always have different speculative theories in grapevines. This is no secret that the names coming up for recommendation change based on the composition of the Collegium on the day of consideration. A very interesting incident on that note happened when Justice U.U. Lalit was the CJI. A Collegium resolution proposed to appoint four judges to the Supreme Court. The meeting of the Collegium could not take place because Justice Chandrachud was holding court till almost 9:30 pm, which was unusually late, on the day on which the meeting was scheduled. Later, the meeting could not happen, the resolution was sent to Collegium members through circulation as timings were such that the name of the next CJI was to be recommended by the incumbent. No appointments are customarily recommended thereafter. Incidentally, Justice Chandrachud, next in line to be the CJI and another member of the Collegium were reported to have objected to it. The resolution couldn’t see the light of the day as within days, his name was sent by Justice Lalit to be the CJI.
Notably, after he took over, three of the four names (Justice Sanjay Karol, Justice P.V. Sanjay Kumar and Justice K.V. Viswanathan) were cleared while the name of Justice Ravi Shanker Jha, the then Chief Justice of Punjab & Haryana High Court was dropped.
However, the nation would never know the reasons for non-elevation of Justice Jha, if the problem with the earlier resolution proposed by Justice Lalit was merely procedural. He remained the seniormost in the overall seniority of High Court judges for quite long and a High Court Chief Justice for almost four and a half years. He originally hailed from the M.P. High Court. Within weeks of his retirement, another judge from the same High Court serving as the Delhi High Court Chief Justice then was appointed to the Supreme Court.
The author spent quite some time last year in the Courts of the United Kingdom as a Pegasus Scholar. He had opportunity to meet Lord Reed and Lord Stephens of the Supreme Court. While Lord Reed has been chosen to be the President (Chief Justice equivalent) of the UK SC, Lord Stephens has ‘decided’ to retire. What was unusual that happened in both the cases was, that despite already being a Supreme Court Judge, Lord Reed had to ‘apply’ for the position of Chief Justice, and Lord Stephens’s successor would be chosen through open advertisement.
This is NORMAL in another part of the world. We should therefore, shed the colonial mentality of conferring false notion of reverence and dignity to offices in order to escape ordinary and fair processes. There is no reason to believe that our judges also, would take fairness as insult and would consider imposing fair processes as unworthy of the dignity of the high constitutional offices.
The issue here is more of the system and the institution than the individuals at the helm of affairs. The institutions can stand firm only when they are guarded by individuals with grit. The recent examples have shown that absence of that determination would make the institution more prone and susceptible to extraneous pressure. It is high time, that the stakeholders firmly discuss about the reforms in the institution of Collegium. It undeniably needs an overhauling even if a case of a complete go bye cannot be made out. In absence of the same, we will keep discussing the issues when a controversy erupts once in a blue moon and keep it at rest at other times.