Appointments of Judges: President to Collegium to NJCA and back to Collegium--IV
After the Keshavanada Bharati and the A.D.M. Jabalpur cases High Courts and the Supreme Court of India became Mrs. Gandhi’s main hunting grounds. After the supersession of three most senior Supreme Court judges and promotion of judges of her choice in various High Courts and the Supreme Court of India Mrs. Indira Gandhi resorted to punish the judges whom she considered as disobedient and inconvenient. In the first step she resorted to the forced transfer of judges from one High Court to another and that too from one corner of the country to another.
During the emergency, on the pretext of achieving national integration, 16 High Court judges from nine High Courts were transferred just in one go. These were the judges who had previously held the opinion contrary to the Supreme Court in A.D.M Jabalpur case. This mass transfer took place in 1976. These judges belong to nine High Courts who had upheld the Fundamental Rights of persons detained during the emergency. These judges were transferred for on corner of the country to another from their original high courts, without their consent and overriding their objections.1 Sixteen High Court judges who were transferred were not guilty of any misbehaviours or wrong-doing On the contrary they had performed their constitutional duties with utmost sincerity, and had only erred in delivering judgments which were not to the liking of the government. In his characteristic style H.M. Seervai writes, “The sixteen judges were transferred not for doing anything wrong but for doing right to all manners of people according to the Constitution and the laws.”2 These judges had ruled against the government over illegal detention of the MISA detunes like Morarji Desai, J.B. Kriplani, Atal Behari Vajpeyee. L.K. Advani, Nadhu Dandvate, S.N. Mishra and so on during the emergency.
In many cases judges initially appointed for two years’ probation before their confirmation in High Courts were not continued because their judgments were not seen in favourable light by the government. The intent of the government was also reflected in its decision to prohibit all newspapers from publishing the names of 16 transferred judges and any discussion on it. A further threat to the judges was indicated by the government by deliberately leaking the names of 4o High Court judges as being under consideration for transfer.3 This was the most blatant attempt to control the higher judiciary. During the emergency a large number of Additional Judges in various High Courts were denied routine extensions or confirmation. These judges were mostly those who had ruled against the unlawful detention of ordinary citizens during the emergency. This included Mr. R.N. Aggrawal, Additional Judge of Delhi High Court, who had ordered the release of Kuldip Nayar from preventive detention. In 1980 when Congress returned to power five High Court Chief Justices were retired without being confirmed. Additional Judges were being given extensions or given appointments only at the last moments and were made to fill in several very demeaning statements.
The slur and insult was so much manifest in this act of transfer that two of the judge could not accept this slur and insult and died of heart attack. Government was roundly criticized and for this act. Normally a very suave and polished, Justice M.C. Chagla, Mrs. Gandhi’s own former Education and Foreign Minister, was to describe this act of Mrs. Gandhi as, “the most brutal and inglorious period of our histry.”4 He further said that all this could happen just because Justice Rey was very weak and cowardice man. For everything he waited for direction from Mrs. Gandhi or her colleague.
Dealing with the transfer case during the emergency and this innovative method of national integration Justice Y.V. Chandrachud observed:
“There are numerous other ways of achieving national integration more effectively than by transferring the High Court Judges from one High Court to another… Considering the great inconvenience, hardship and possibly a slur which a transfer from one High Court to another involves, the better view would be to leave the Judges untouched and take other measures to achieve that purpose. If at all, on mature and objective appraisal of the situation, it is still felt that there should be a fair sprinkling in the High Court judiciary of persons belonging to other States, that object can be more easily and effectively attained by making appointments of outsiders initially.”5
The Congress Party leaders and the Government left no stone unturned to malign and demoralize the judges. A cabinet Minister of the Mrs. Gandhi’s government had bracketed the whole judiciary with the opposition parties just because the judges would just not accept and do what the Congress government wanted. In the Lok Sabha Law and Justice Minister H.R. Gokhale, and other leaders like K.P. Unnikrishnan, Chandrajeet Yadav, P. Kumaramangalam and many others started talking about committed judiciary. Mr. H.R. Gokhale, Himself a judge in the past in Bomboy High Court and now a Law Ministers in Mrs. Gandhi’s cabinet went as far as issuing a letter to each judge through the State Chief Ministers that:
“The Government of India thinks very highly of those ‘value-packed’ judges who never rule against the Government, and will consider favorably their promotion to the Supreme Court.”
Emergence of Collegiums System
As we have already seen political interference in the appointment of High court judges had started from the time of Jawaharlal Nehru himself, not based on merit but personal likes and dislikes. But what happened during the regime of Mrs. Indira Gandhi and especially during the emergency must have been a matter of great concern among the judges who valued and treasured the independence of the judiciary. The appointments in the High Courts and Supreme Court have always been an issue between the judiciary and executives. Emergency must have provided further impetus towards doing something to insulate higher judiciary form excessive interference by legislatures and the executives.
The roots of the Collegium system is traced to second judges and third judges cases which are, Supreme Court Advocates on Account case (judgment on 06.10.1993) and Government of India’s petition for the reconsideration of the judgment of 6 October, 1993 respectively.
The collegiums came in existence immediately after the judgment in the Supreme Court Advocates on Account case (judgment on 06.10.1993). This judgment took the position that the Chief Justice of India who had primacy in the matter of the appointment of judges , with such opinion being formed in consultation with a collegiums consisting of two of the senior-most judges of Supreme Court and that the consultation was to be read as concurrence.
This judgment fundamentally altered the nature and process of appointments envisaged in Article 124(2) and Article 217(1) of the Constitution. In the entire Constitution there is no provision of Collegium for the appointment of High Court and Supreme Court judges. In a way this judgement rewrote the appointment Articles 124 (2) and 217(1) without deleting or subtracting them from the Constitution.
It was further held in the judgement that in the event of disagreement between the constitutional functionaries involved in appointments of judges, the opinion of Chief Justice of India will have Primacy. In the beginning CJI consulted two of his senior most judges but it was later expanded to four senior most judges. Eventually through the third judge case Supreme Court laid down different sizes of collegiums depending on whether it was an appointment of Supreme Court, High Courts, or transfer of judges from one court to another.
Since the collegiums came into existence all the appointment to the Supreme Court and High Courts have been done by it. However, the functioning of the collegium has come into question by the judges themselves. Not only no criteria have been evolved for the appointment but also no records of the collegium meetings are kept. No records and details of judges who are appointed, are kept.
Discordant voices have been raised regarding the whole collegium system. In nutshell the main allegations can be summed up as follows:
There are no parameters, no framework for the selection of High Court judges or elevation to the Supreme Court and no minutes are kept in such matters;
Everything is kept secret and no one knows anything beyond the collegiums members;
Nepotism reigns the collegiums decisions;
Time and again Supreme Court judges, even the chief justices have voiced that things are not well in the collegium system and urgent reforms are needed.
IN absence of any working framework everything has come down to personal liking and disliking and indeed tough bargain not only among the collegium members but even executives. Retired justice Ruma Paul, herself member of the collegium for sometime, said:
“The process by which a judge is appointed to the High Court or elevated to the Supreme Court is one of the best kept secrets in the country…. The ‘mystique’ of the process, the small form which the selections were made and the ‘secrecy and confidentiality’ ensured that the ‘process may, on occasions, make wrong appointments and, lend itself to nepotism.”6
Justice Chelameswar has been so frustrated that several times re refused to participate in the collegium meetings and wrote very critical letter about the whole process.
The collegium does not follow any set criteria are reflected in the decisions it has made for elevating High Court judges to Supreme Court. Some of the most renowned judges and indeed being senior most among all the High Courts combined judges’ seniority could not make it to Supreme Court. But at the same time many really – really junior judges made it to the top court. When Ruma Paul was elevated to Supreme Court she was at No.70 in order of High Court judges’ seniority; Altmas Kabir at no.13; Amitav Roy at no.35; V.N. Krishna at no.33; S.H. Variava at no.38 and so on. K.M. Joseph, appointed after considerable controversy, to the Supreme Court was no. 42nd in the overall seniority and no. 11th among the High Court Chief Justices. This is just a small sample. Similarly since the collegium system came in existence some judges could make it to Supreme Court after serving 15 years in High Court (JJ Anand, Kirpal, Deepak Mishra); 14 years (JJ Bharucha, Lodha, Thakur); 13 years (Justice Khare, Sabbarwal, Dattu); a few were so lucky that they climbed up in Supreme Court after just in nine years in the High Court. Justice V.R. Krishna Ayyar was exception to have gone to Supreme Court just after three years in High Court. But as a judge Krishna Ayyar hardly could be influenced by his ideology. Not necessarily all the time selecting and recommending junior judges have gone wrong but the examples of justice Karnan, justice Pandian, Justice Dinakaran, justice Sen and even CJI K.G. Balakrishnan shows how sometimes things can go horrible wrong.
Nepotism in the appointments of judges is another thing that has been doing the round. We need to look at this aspect also. There are or have been six judges who are sons of former Supreme Court judges: P.N. Bhagwati, S.M. Fazal Ali, B.P. Singh, N.Santosh Hegde, B.N. Agrawal, D.Y Chandrachud and Justice K.M. Joseph.
Similarly High Courts are also adorned by large number of sons and grandsons of former judges in SC and HC. For example A.K. Mukharjee (s/o B.K. Mukharjee), D.K. Kapur (s/o J.L. Kapur), D.K. Mahajan (s/o of C.K. Mahajan, gs/o M.C. Mahajan), B.P. Singh and R.P. Singh (s/o and gs/o B.P. Sinha), A.N. Ray (s/o Ajit Nath Ray), Anil Dev Singh (s/o Jasvant Singh), R.P. Mishra (s/o R.B. Mishra), K.M. Joseph (s/o K.K. Mathew) and so on. Besides, there are a large number of judges whose family members have deep connections with the executives and well as judiciary and they made it to High Courts or Supreme Court. A sitting judge recently said that competition to reach to Supreme Court is so tough that without a Godfather it is impossible.
All this is neither good for judicial process nor the prestige of honourable Courts and the judges.
National Judicial Appointment Commission
In order to overcome the problems of collusiveness and the lack of transparency in the collegium National Judicial Appointment Commission (NJAC) bill was passed by the Parliament. It was envisaged that NJAC will be responsible for the appointment of Judges to High Courts and Supreme Court, transfer of judges from one High Court to another and other works related to judiciary. The NJAC consisted of six members:
Chief Justice of India (Chairperson, ex officio)
Two other senior judges of the Supreme Court next to the Chief Justice of India (ex officio)
The Union Minister of Law and Justice (ex-officio)
Two eminent persons
These (two) eminent persons would have been nominated by a committee consisting of the
Chief Justice of India,
Prime Minister of India, and
Leader of Opposition in the Lok Sabha (or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.
It became part of the Constitution through 99 Amendment. It may be pointed out that it was passed by both the houses of the parliament with an overwhelming majority. It was passed in Lok Sabha with 369 members voting in favour and none voting against it. In Rajya Sabha, it was passed by 179 members voting in favour while one member abstained from voting.
Once the NJAC became the reality it was felt that NJAC would usher in a new era for the appointment of judge in the Supreme Court and High Court and there shall be enough transparency. But even before the Commission could start it’s work a writ was filed by ever active Prashant Bhushan in the Supreme Court against the 99th Amendment in the Constitution. It may be recalled that this is the same Prashant Bhushan who got Supreme Court opened even past mid-night to hear his please to save Afzal Guru from gallows, whose death sentence had been confirmed by Supreme Court on the terrorist attack on Parliament and also mercy petition was rejected by the Hon’ble President of India.
The writ against 99th Amendment was heard by a bench of five judges headed by Justice J.S. Kheher. Other Judges were JJ J. Chelameswar, M.B. Lokur, Kurian Joseph, and A.K. Goel. A request was made for a larger bench than the one which heard the II and III judges cases as the as the issue involved the Constitutional amendments and the Collegium itself. This request was turned down and the five judges’ bench continued to hear the case. The case was decided on 16 October 2015 by a majority of 4:1. Only Justice Chelameswar upheld the 99th Amendment and the validity of NJAC. Four other judges by majority struck down 99th Amendment and ordered the continuation of Collegium system. This judgment invalidating the Amendment has been very heavily criticized; even by former judges of the Supreme Court. Former Supreme Court judge K.T. Thomas writes:
The majority judgment in the NJAC case administered a warning that even four judges are enough to strike down a law not palatable to the judges of Supreme Court, no matter that such amending law had the backing of the Parliament, was rectified by 20 states, and in essence, was symbolic of the will of the people manifested by their representatives in Parliament….
Interestingly, while striking down the 99th Amendment and nipping the bud the system of judicial appointments that it sought to establish, the bench in the NJAC case did acknowledge the frailties of the collegium system. The perils highlighted by justice Joseph are almost a testimonial point to the nadir to which the collegium system has plummeted over the years. JUSTICE Joseph acknowledged the fact that “the present collegium system lacks transparency, accountability, and objectivity and very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective. Yet the learned judge joined his brothers in striking down the 99th Amendment.7
Now we are back to square one. It is now well over two and a-half years. Nothing has been done on the part of Supreme Court to resolve the matter except that from time to time it cries that the Government is not appointing judges. Despite promise to improve upon the functioning of collegium system and bringing in more transparency, so far nothing has been done.
Granuville Austine, 1999, Working A Democratic Constitution, p.344.
H.M. Seervai, 1998, Constitutional Law of India, p. 2802.
Ibid. p. 2803
M.C. Chagla, 1977, ‘Memorial Lecture’ delivered at Bombay House on 15 December 1977.
Y.V. Chandrachud, in Union of India v. Sankalchand Himatlal Seth and others. Date of Judgement 19.09.1977.
Fifth V.M. Tarkunde Lecture, delivered in Bombay
K.T. Thomas, ‘Judicial Review and Parliamentary Power’, in Appointment of Judges to the Supreme Court of India, Edited by A. Sengupta and Rutwika Sharma, p.74.