Revision as of 22:22, 23 March 2017

The collegium system, NJAC Act and the SC order of Oct 2015: The broad details; Graphic courtesy: The Times of India

What Justice Venkatachaliah Committee recommended, 2002; Graphic courtesy: The Times of India

History

How executive lost control over judicial appointments

The Times of India, Oct 17 2015

Senior judicial appointments in India; the constitutional position and history; Graphic courtesy: The Times of India, Oct 17 2015

History: The Evolution of the collegium
The Times of India

Indira killing, Babri case, graft strengthened Judiciary's hands

In the early decades after the adoption of the Constitution, judicial appointments were the government's prerogative, judges being designated on the President's recommendation before politically-tainted decisions set the stage for the judiciary snatching the right from the executive. Ajit Ninan Provisions of the Constitution under Article 124(2) and 217(1) clearly say that while the judiciary should be consulted, the final say vests with the government, the President appointing judges by warrant under his hand and seal. This is how it was from 1950 to 1993.

The intrusion of political considerations saw the term “committed judiciary“ gain currency during Indira Gandhi's tenure as PM, generating a backlash strengthened by the Emergency . The executive hold was further tightened with consultation with judiciary being held as not tantamount to consent.

Political developments from Indira's assassination in 1984 to the installation of a Janata Dal government in 1989 to the return of Congress and the appointment of Narasimha Rao as PM saw a string of corruption scandals make news and influence public opinion adversely on legislators and Parliament.

Congress under Rajiv Gandhi lost the 1989 polls with the Bofors scandal symbolizing the opposition's agenda. Once the unstable V P Singh government fell, the Rao regime was rocked by cases like cash for votes in a no-confidence motion and hawala scandal.

Governments of the day found their legitimacy eroded following events like the Babri Masjid demolition.Corruption scandals left the political class with little will and moral authority to protest against the judiciary's moves to appropriate the power to appoint judges. In 1993, when SC ruled that primacy in appointing judges vested with the judiciary , Rao's government was still reeling under the Babri demolition aftermath as it fended internal challenges and the opposition.

For much of his tenure, Rao had to deal with the saffron threat and efforts of par ty dissidents to unseat him.

The setting for UPA 's bid to legislate the NJAC bill was not very propitious either as Manmohan Singh's government in its second term found itself battling one scam after another. As its political capital drained, BJP saw no reason to help with passage of the NJAC, though it supported the legislation in principle.

Armed with a majority , BJP felt it was better placed to push through the NJAC and mounted a spirited bid in the court arguments. Passage by state governments bolstered its case, but SC has tenaciously defended its turf.

Before 1993: Appointment of judges: superior courts

Whatever the process, men of character must pick judges

LEGALLY SPEAKING –

The Times of India Jul 29 2014

Till 1993, judges were appointed to the Supreme Court and high courts by the President, read the Union government, after consulting the Chief Justice of India. The CJI seldom disagreed with the executive.

Two significant judgments dramatically altered the process. In 1993, a nine-judge bench in Supreme Court Advocates on Record Association case took away the executive’s primacy in appointment of judges and gave it to the CJI. In 1998, another nine-judge bench answered a presidential reference by laying down an elaborate procedure – the CJI-headed collegium system – to select and recommend to the government persons to be appointed as judges of the SC and HCs.

The executive was given the option of returning a name for the collegium’s reconsideration. If the name was re-sent, the executive was bound to appoint him. For the last 16 years, this judge-appoint-judge system has been in operation. Markandey Katju has experience of both the systems. He was appointed a judge of Allahabad High Court by the executive in 1991. But his later appointments -chief justice of Madras HC and transfer to Delhi HC and later as judge of SC in April 2006 – happened under the collegium system.

He often gave vent to his intolerance towards corruption. In March 2007, while sitting with Justice S B Sinha, he had said, “Everyone wants to loot this country. The only deterrent is to hang a few corrupt persons from the lamp post.

The law does not permit us to do it, but otherwise we would prefer to hang the corrupt.” Katju, who would have preferred instant Taliban style justice in the absence of limitations of law, strangely remained tight lipped for nearly a decade on a ‘corrupt judge’ continuing in Madras HC. His revelations have stirred a fresh debate on what would be the ideal process for appointment of judges to the SC and HCs? Both systems had their share of questionable products.

Two famous judges – Y V Chandrachud and P N Bhagwati – were appointed by the executive. They capitulated to political pressure much more gravely than Justice R C Lahoti, who was taken in by the then wily law minister H R Bhardwaj in 2005 and granted extension of service to a ‘corrupt judge” despite the collegium unanimously deciding not to continue with his services.

On April 28, 1976, a five-judge bench pronounced judgment in the ADM Jabalpur case and buried all fundamental rights, including the most fundamental among fundamental rights – the right to life – under political pressure of the Indira Gandhi regime which wielded draconian powers during Emergency. How on earth could a country survive without its citizens having the right to life? But the famous four – then CJI A N Ray and Justices M H Beg, Y V Chandrachud and P N Bhagwati – capitulated. They gave primacy to selfpreservation over preservation of citizens’ life.

Under tremendous political pressure and threat, Justice H R Khanna held his head high to record a dissent note saying right to life could never be suspended. He stood tall among the five, and is still standing tall in court number two of the Supreme Court. Khanna too was a product of the same system which had appointed the other four. Khanna valued life. The rewards of capitulation went to Justice Beg, who was appointed CJI by the Indira regime. If the government thought of humiliating Khanna by superseding him, it failed. He tendered his resignation. Khanna showed that a man’s character shines brightest in times of pressure and adversity.

The SC realized this six years later and spoke out in S P Gupta case [1982 (2) SCR 365].

“Judges should be stern stuff and tough fire, unbending before power, economic or political and they must uphold the core principle of rule of law which says ‘be you ever so high, the law is above you’,” it had said. Immortal words penned more than three decades ago, but seldom practiced.

Whatever process a political system devises for appointment of judges, it would lose its efficacy if it is manned by people who do not put country over self and place integrity above politics and posts.

As president of the Constituent Assembly, Rajendra Prasad, who went on to become the first President, had warned of this while moving for adoption of the Constitution in 1949.

He had said, “Whatever the Constitution may or may not provide, the welfare of the country will depend upon the men who administer it. If the people who are elected are capable and men of character and integrity, they will be able to make the best even of a defective Constitution. “If they are lacking in these, the Constitution cannot help the country, After all, a Constitution, like a machine, is a lifeless thing. It acquires life because of the men who control and operate it. And India needs today nothing more than a set of honest men who will have the interest of the country before them.”

1993 and 1998: The collegium system begins

Centre will amend Constitution to scrap collegium

Dhananjay.Mahapatra @timesgroup.com New Delhi:

The Times of India The Times of India Jul 26 2014

The judge-appointing-judge system was devised by the SC through two judgments in 1993 and 1998.

There is ambiguity vis-a-vis the constitutional provisions on the appointment of judges and the present practice.

Two articles provide that the executive, through the President, would have primacy in appointment of judges. This is how it was till 1993, when a constitution bench of the Supreme Court held that the CJI would have primacy in appointment of judges.

Article 124(2) says, “Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and the high courts in the states as the President may deem necessary for the purpose...“

Apex court's judgments stripped exec of any say in judge selection

Article 124(2) of the Constitution also provides that “in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted“. For appointment of a high court judge, Article 217(1) mandates the President to consult the CJI, governor of the state and chief justice of the HC.

Five years after a Constitution bench of the Supreme Court held that the CJI would have primacy in appointment of judges, in 1998, another Constitution bench judgment stripped the executive of any significant say in the appointment of judges to constitutional courts by devising the CJI-headed collegium system.

The scheme, which has been called judicial usurpation by others but justified by judges by invoking judicial independence, has lately been under the scanner for opaqueness.

So much so that former CJI J S Verma, author of one of the judgments by which the judiciary conferred upon itself the right to appoint judges, sought a review.

Efforts of the executive to do away with the collegium system began under UPA but failed to fructify. While in opposition, BJP supported the move but demanded that the Judicial Appointments Commission, which is proposed to select judges, should be fortified with a constitutional amendment in view of a likely challenge in judiciary .

It reiterated its support for JAC after coming to power, retired SC judge Markandey Katju about a former CJI giving in to political pressure to extend the tenure of a “corrupt“ judge is likely to provide fresh justification for its plans.

The Judicial Appointments Commission Bill, 2013 proposes replacing the collegium with a six-member panel headed by the CJI and comprising two SC judges, the law minister and two eminent citizens as its members.

The bill provides for selection of eminent citizens through another high-level committee comprising the Prime Minister, the CJI and the leader of opposition in Lok Sabha.

A parliamentary standing committee examined the bill and recommended that the JAC panel, headed by the CJI, should be a seven-member committee instead of six as proposed. It had suggested that three eminent persons be included in the panel instead of two proposed in the bill, with one of them either a woman or from the minority community or from SC/ST community.

2014: Collegium system ends

BENCH PRESS Dec 28 2014

The Times of India

MANOJ MITTA

The 21-year-old system of judges appointing themselves was scrapped in 2014, sparking fears of a decline in judicial independence On the historic day of May 16, 2014, when BJP became the first party in 30 years to win a clear majority in national elections, there was another significant development. It was the Supreme Court judgment passing strictures on the Gujarat government -specifically the home minister, who was Narendra Modi himself -while acquitting all the six accused for the Akshardham terror attack which had taken place barely six months after the post-Godhra riots. As it happened, within three months of the Akshardham judgment, the government pushed through a constitutional amendment stripping the judiciary of its “primacy“ in appointments to the SC and high courts.The 99th constitutional amendment Bill and the accompanying legislation, the national judicial appointments commission Bill, are set to dilute the powers that the SC appropriated for itself and the high courts through a controversial reinterpretation of the Constitution in 1993.

The new system of judicial ap pointments, which has restored the executive's say in the matter and opened up the process to two “eminent persons“ from outside, will come into force when at least 15 state assemblies endorse this far-reaching change. In place of the collegium consisting only of judges, the commission will have judicial and nonjudicial members in equal measure.Besides the Chief Justice of India (CJI) and two senior SC judges, the commission will have the law minister and the two eminent persons nominated by a panel consisting of the Prime Minister, CJI and the opposition leader in the Lok Sabha.

Though several from the opposition ranks and the bar have attacked it as an erosion of judicial independ ence, the circumstances were propitious for the government to make a strong case for doing away with, what has long been reviled as “a selfperpetuating oligarchy“. The credibility of the judiciary had been hit by a series of scandals -concerning probity and sexual misconduct -even prior to the formation of the Modi government.

The first clash under the new dispensation was on the collegium's recommendation to ap point senior advocate Gopal Subramanium to the SC. Departing from the practice of going by IB reports, the govern ment blocked Subrama nium's candidature on the basis of an adverse input from the CBI. This provoked a controversy as it was seen as a politically motivated move to keep away Subramanium on account of his role as amicus curiae in the Sohrabuddin fake encounter case. It was on his report that the SC had ordered a CBI probe leading to a charge-sheet being filed against Gujarat police officers as well as Amit Shah in his capacity as minister of state for home.

But the next flashpoint helped the government gain a moral edge over the judiciary. It was a blog written by former SC judge Markandey Katju alleging that, when he had been chief justice of the Madras high court, his attempt to get rid of a corrupt judge had been thwarted by then CJI, RC Lahoti. Detailing a murky sequence of events, Katju wrote that despite receiving an adverse report from the IB, Lahoti gave in to pressure from the Congress-led coalition government which in turn wanted the corrupt judge to be spared at the instance of its ally DMK. Though Lahoti denied this, Katju's blog put the judiciary on the defensive as it was evidently based on inside knowledge.

Katju went on to write that in response to another complaint of his against an Allahabad high court judge, the then CJI, SH Kapadia, had ordered tapping of telephones. Kapadia too denied Katju's contention.A day after Kapadia's denial on August 11, the then CJI, RM Lodha, erupted in court saying that there was “a misleading campaign against the judiciary to bring it into disrepute“. The provocation was a petition questioning the reported elevation of a Karnataka high court judge, KL Manjunath, as chief justice of the Punjab and Haryana high court despite the objections raised by an SC judge. The government's decision to return Manjunath's file underscored the fragility of the collegium system.

The succession of such events was enough for the government to garner enough support in both Houses to make the long-awaited breakthrough on judicial appointments. There was an interesting epilogue to this institutional battle, a month after passage of the Bills. A Constitution bench headed by Lodha stopped an executive intrusion into the judicial domain by striking down the national tax tribunal Act 2005. But the growing strength of the executive in 2014 has triggered fears of a parallel decline in judicial independence.

Collegium, NJAC and lobbying by retired judges

The Times of India, June 6, 2016

Dhananjay Mahapatra

Presence of the law minister in the judge-domi nated National Judicial Appointments Commission (NJAC) was a red rag to the Supreme Court, which could smell the possibility of executive-political influence in the selection of judges to constitutional courts. It struck down the NJAC and said, “We are of the view that consequent upon the participation of the Union minister in charge of law and justice, a judge approved for appointment with the minister's support may not be able to resist or repulse a plea of conflict of interest, raised by a litigant, in a matter when the executive has an adversarial role.

“In the NJAC, the Union minister in charge of law and justice would be a party to all final selections and appointments of judges to the higher judiciary . It may be difficult for judges approved by the NJAC to resist a plea of conflict of interest (if such a plea was to be raised, and pressed), where the political-executive is a party to the lis. The above, would have the inevitable effect of undermining the independence of the judiciary .“

The SC wanted the process for selection of judges to be handled by the collegium of judges headed by the Chief Justice of India to maintain the independence of judiciary. It meant to say that if a a judge is lobbying for elevation to the SC, or if an advocate is lobbying for appointment as an HC judge, then let the lobbying be confined to the judiciary .

In such a judge-centric selection process for appointment of judges to the SC and HCs, one would expect that independence of judiciary would remain unscathed, being insulated from executive-political influence. And it is a natural corollary that products of the collegium system, after discharging their function as judges for years in complete isolation from the executive-politicians, would maintain a high degree of aloofness from the politicians.

The reality is very different. It has not changed a bit from what was in vogue in the 1980s, during the pre-collegium days. The NJAC judgment itself extracts a parag raph: “It appears that the government headed by (then) Prime Minister V P Singh had stalled appointments of 67 persons recommended by the chief justices of various high courts. Charges were fre ely traded against each other by the constitutional functionaries who are part of the appointment process of the constitutional courts. It appears that a law minister for the Union of India complained that state governments were trying to pack high courts with their `own men'.“

Who were these `own men' of the state governments? Have the `own men' not been appointed as judges of constitutional courts in the last two decades? The instances are plenty and talked openly in court corridors.One test of this `own men' is the way they lobby with the executive-politicians for post-retirement rehabilita tion in posts reserved for retired judges.

One such glaring example is of a recently retired HC chief justice, who was recommended by the CJI for an appellate tribunal. The government turned it down citing “adverse inputs“ against the ex-CJ. Having failed to secure a post-retirement tribunal post, he went to a political party and convinced it to recommend his name to the Centre for appointment as the head of a state human rights commission. But the tragedy with him is that the state HRC was yet to be constituted and the matter is pending before the SC.

During the hearing of the case, the CJI-headed bench was repeatedly telling the Centre that the national capital must have a human rights commission. It even commented that the Delhi government jumped the gun in recommending the name of a former HC CJ as its chairperson even before the commission was set up. Let us apply the test that was applied by the SC to quash NJAC. It was merely because the executive had a symbolic polluting presence in NJAC through the law minister and the apex court felt this apprehension of pollution was enough to endanger independence of judiciary .

The tribunals and the human rights commissions too adjudicate cases, at their very raw stage, involving the government and its functionaries. As per the SC test, those who head these tribunals and SHRCs must remain independent, which they are supposed to remain being products of the collegium system of selection of judges.

But many retired judges visit the law minister and other Union ministers to land one of these posts, for which the CJI still recommends the names but the government has the option of scotching it on grounds of integrity . The recently retired HC CJ sometime back visited a Union minister to placate him and get the desired post.

Judicial independence is not a factory produce. Uniformity of this rare trait in every judge cannot be achieved whether the executive selects them or the collegium.It is a personal trait which depends solely on the individual's character and the grooming he got in the judiciary .

2014: Panel to pick judges

The Times of India

Jan 01 2015

The Supreme Court collegium system of appointing judges to the apex court and high courts got a burial with President Pranab Mukherjee giving his assent to the Judicial Appointments Commission Bill .

The bill has already been ratified by at least 17 states and many more are in the process of doing so, said a senior law ministry official. It is mandatory for a constitutional amendment bill after it is passed by both Houses of Parliament to be ratified by at least half of the states. This brings to an end a system which the apex court had put in place through a judgment in 1993 to do away with the earlier practice of the government appointing judges.

The process of replacing the collegium with a panel was initiated during the first NDA government through a bill in 2003 but it was never taken up by Parliament. After Modi took over, Ravi Shankar Prasad, law minister in the first NDA government, initiated the NJAC bill and pursued political parties to evolve a consensus. The government will shortly notify the new Constitutional amendment replacing the SC collegium with the National Judicial Appointments Commission (NJAC). After the notification, the process of setting up of the NJAC will begin as provided under an enabling legislation which has been passed by Parliament along with the Constitution amendment bill.

The enabling NJAC bill provides for a six-member commission headed by the chief justice of India and comprising two senior SC judges as its members besides two eminent persons and the law minister. The two eminent persons in the commission will be appointed by a panel comprising the CJI, the Prime Minister and the leader of the largest opposition party in Lok Sabha. The NJAC also has provision for a veto where it provides that no name opposed by two or more of the six-member body can go through. The two eminent persons will have a tenure of three years and one of them would be from one of the following categories: scheduled castes, scheduled tribes, women or the minority community .

After the NJAC is set up, a name recommended for appointment as judge to the SC or high courts can be returned by the President for reconsideration. Though an initial recommendation to the President for appointment can be made by a 5-1 majority , this would not suffice to re-recommend the same name.

If a name is returned for reconsideration, the committee can reiterate the name only if there is unanimity among the members after reconsideration.

NJAC Act: Can CJI decline to be part of a constitutional process?

The Times of India

Apr 28 2015

Can CJI decline to be part of a constitutional process?

Dhananjay Mahapatra

Can the Chief Justice of India refuse to participate in a process to make functional the new mechanism for judges' appointment mandated by a constitutional amendment and the NJAC Act, enacted by Parliament and ratified by 20 states?

The Centre termed CJI H L Dattu's decision to abstain from selection of two eminent persons to make the sixmember NJAC functional as “unconstitutional“. Attorney general Mukul Rohatgi said the oath taken by the CJI prohibited him from abstaining from the meeting comprising himself, the PM and the leader of opposition.

The Third Schedule of the Constitution provides the format for the CJI's oath, the relevant portion of which reads, “I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India... and that I will uphold the Constitution and the laws.“

With the AG declaring the situation a “constitutional stalemate“, a five-judge bench headed by Justice J S Khehar attempted to find a way out of it and sought views from senior advocates Fali S Nari man, K K Venugopal, K Parasaran and Harish Salve.

Venugopal and Parasaran said it was constitutionally impermissible for the CJI to decline participating in a process which was mandated by the Constitution. They said the provision, though under challenge, had not been stayed by the SC despite hearing it for days together.

Oct 2015: SC strikes down NJAC Act

How the world appoints its highest judges, OK, Canada, US, Germany, France, South Africa, Brazil; Graphic courtesy: The Times of India

The Times of India, Oct 17 2015

The collegium system, NJAC Act and the SC order of Oct 2015: Highlights; Graphic courtesy: The Times of India, Oct 17 2015

Excerpts from the SC judgement on the NJAC Act; Graphic courtesy: The Times of India

Excerpts from the SC judgement on the NJAC Act; Graphic courtesy: The Times of India

Dhananjay Mahapatra & Amit Anand Choudhary TNN

SC strikes down law giving govt say in picking judges  Rift widens as NJAC Act declared `Unconstitutional'

Fears Political Meddling, Curb On Judicial Independence

The Supreme Court struck down the National Judicial Appointments Commission (NJAC) and ordered revival of the SCscripted two-decade-old `judges-selecting-judges' collegium system, rebuffing a unanimous Parliament decision to bring transparency in appointment of judges and potentially setting the stage for a confrontation between the executive and the judiciary . A five-judge bench, by a 4-1 majority declared the 99th constitutional amendment and the consequent legislation NJAC Act as unconstitutional on the ground that the NJAC had the law minister and two eminent persons as members who could join hands to reject the proposals of the judiciary , represented by the Chief Justice of India and two seniormost SC judges. Under the NJAC, any two members can veto a proposal.

The court held that the constitutional amendment and NJAC was a sure recipe for political meddling and executive interference in judi cial independence, which was part of the inviolable basic structure of the Constitution.

However, each judge acknowledged that all was not well with the collegium sys tem. The bench asked the government and petitioners to suggest in writing how to improve the system. Justices J S Khehar, Madan B Lokur, Kurian Jo seph and Adarsh Kumar Goel were unambiguous that inclusion of a politician (law minister) in NJAC was fraught with the danger of serious interference with the independence of judges.They recalled how the Indira Gandhi regime in the 70s had advocated appointment of `committed' judges.

Justice Chelameswar struck the lone dissent note, recalling the infamous ADM Jabalpur case of 1976 when the apex court had declared that right to life could be suspended during Emergency and said, “In difficult times, when politi cal branches cannot be counted upon, neither can the judiciary .“

However, the other four judges were convinced that the NJAC would be a disaster for the independence of judiciary and the justice delivery system as a whole.

Justice Khehar, in his 440-page judgment, made light of the fact that Parliament had unanimously backed NJAC. He said for judicial scrutiny of the constitutional validity of a law, it was inconsequential whether it was passed with a waferthin majority , brute majority or unanimity . On inclusion of the law minister and two eminent persons in the NJAC with any two members empowered to veto a proposal mooted by the CJI and two senior-most judges, Justice Khehar said it breached the primary mandate of the Constitution to give primacy to the CJI in appointment of judges.

He and Justice Lokur faulted the inclusion of the law minister in the NJAC, saying the government was the biggest litigant and, hence, participation of its representative in NJAC would render the justice delivery system suspect.

The court said the minister's participation could raise the “conflict of interest“ handicap against those judges from hearing cases against the government.

November 2015: SC approves a revised collegium

The Times of India, Nov 20 2015

AmitAnand Choudhary

Revived collegium to go ahead with appointment of judges: SC

The Centre told the Supreme Court that it would not formulate the draft Memorandum of Procedure (MoP) on the functioning of the collegium system for “judicial vetting“. It instead suggested that the task of reforming the system of appointment of judges should be left to the government, a plea which was rejected by the apex court. Afive-judge constitution bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel went ahead with the proceedings to explore ways to make the collegium system more transparent and accountable as it concluded the hearing. The bench clarified that the now revived collegium system can go ahead with the appointment process for judges in higher judiciary which has been in limbo for almost one year after the National Judicial Appointments Commission (NJAC) was brought in force and vacancies in high courts shot up to 40%. The bench is likely to pass an order suggesting measures to reform the system after the Centre refused to place the draft MoP to be followed by the collegium for appointment of judges incorporating the suggestions given by people from different walks of life.

A day after the apex court asked Attorney General Mukul Rohatgi to draft MoP and place before it within 15 days, he told the bench it is exclusively an executive function of the government in consultation with the Chief Justice of India and it cannot be subjected to “judicial vetting“.

“Memorandum is an executive document. There is no reason for the court to see what is there in MoP .Leave it for the government to frame it in consultation with the CJI,“ he said.

“Suggestions are already there. The court can also give its suggestions and the job of the court comes to an end. The government would work out on MoP . It is unnecessary burden being taken by the court. It is not possible that the draft prepared by government in consultation with the CJI and approved by the Prime Minister be vetted by the court,“ he said.

The AG said the role of CJI would finish if MoP is decided by court and pleaded that the bench should refrain from venturing into the area.

The bench, however, said there are gaps in the present MoP due to which the judiciary is facing problems and there is no transparency in appointment of judges. It said those gaps should be filled up by framing a new memorandum.

The bench then went ahead and concluded the proceedings noting down various suggestions given by lawyers on reforming the “opaque“ collegium system. The constitution bench had taken the unprecedented step of inviting views of general public for improvement of the collegium system which has been widely criticised for being non-transparent. The SC has taken up the task to improve the collegium system after striking down the National Judicial Appointments Commission, terming it unconstitutional.

2016, June: Govt repeats `no' to collegium's pick for HC CJ

The Times of India, Jun 06 2016

Pradeep Thakur

Govt repeats `no' to collegium's pick for HC CJ

In a first, the government has rejected a recommendation of the Supreme Court collegium for appointment of a high court chief justice for the second time. This comes at a time when the government and judiciary are locked in a standoff over certain clauses in the Memorandum of Procedure that will guide appointments to the higher judiciary.

The collegium, comprising the four seniormost judges of the apex court and headed by the Chief Justice of India, had recommended a judge's name for appointment as chief justice of a prominent opposition-governed state. The government turned it down. The collegium reiterated its recommendation, which makes it binding on the government to appoint the judge in question.

However, the government has asked the collegium to reconsider its decision as at least two sitting SC judges have expressed reservations about the judge. The government is de termined to question the rationale of the collegium negating the views of its brother judges who expressed serious reservations about the elevation of a judge in view of his alleged questionable integrity , according to sources.

Two sitting Supreme Court (SC) judges, who are believed to have worked with the judge in question in their previous assignments at another high court, have written to the collegium saying the judge should not be elevated as chief justice.

The objections of the two SC judges were also forwarded to the government along with the recommendations.

One of the clauses in the government-drafted Memorandum of Procedure (MoP), which was on May 25 returned by the Chief Justice of India to the government rejecting almost all major suggestions, talks about merit being the prime consideration for all appointments to the higher judiciary.

Besides, the MoP suggests that the exclusive collegium, both in the SC and in high courts, must consult all judg es on putting together a list of suitable candidates before getting on to the shortlisting process.

The government had, in the draft MoP, also proposed to reserve the right to reject any recommendation of the collegium in the “national interest“ which too is believed to be one of the points of discord.

The government seems to be in no hurry to settle the MoP row even as it has decided to clear pending recommendations for appointment of judges to the apex court and high courts based solely on merit, using its own vetting mechanism. It has already fast-tracked appointment of at least 170 judges recommended by the collegium in the past three-four months, considering that at least 40% judges' posts are lying vacant in 24 HCs.

2016, Sep: Allahabad HC Collegium's list includes kin of judges, politicians

The Times of India, Sep 03 2016

Pradeep Thakur

Govt sends to SC collegium a list of judge picks, but with some remarks

The government has started moving files on appointments of high court judges, beginning with the list of 44 names recommended for appointment as judges of the Allahabad HC.

The recommendations by the collegium of the HC concerned were pending with the Centre as it sought to go for a vetting exercise, taking inputs from the Intelligence Bureau (IB) and verifying certain complaints against some of the recommendations.

TOI had earlier reported how the government had put on hold the appointment of 44 judges for the Allahabad HC and asked the IB to run in tense checks on the reputation and antecedents of the candidates in view of complaints that many had made it to the coveted list largely because they were relatives of sitting and former judges.

A source said the Centre has put its “remarks“ and attached the IB reports against each recommendation as per procedure and forwarded this to the SC collegium for it to take the final call. The government has the option of sending names back to the collegium for reconsideration if it differs with the SC's recommendations. However, once reiterated, the collegium's choices will be binding on the government, requiring it to notify the appointments.

Around 30 of the 44 names recommended by the HC collegium are lawyers, and at least seven of them are related to serving and former judges of the Allahabad HC, said a source. One lawyer recommended for judgeship is related to a senior member of a leading political party while another is believed to be close to the ruling dispensation and a state government lawyer. About 14 of those recommended are from the state judicial service.

The HC collegium comprises its two most senior judges and is headed by the chief justice. Its recommendations are referred to the law ministry which runs them through the IB before forwarding the names along with its fin dings to the SC collegium to take a final decision.

The Centre also looked into whether the HC collegium had considered representation to OBCs and SCSTs while making final choices.It is believed the list of 44 has a dominance of upper castes.

Earlier, the NDA regime had cleared 115 names recommended by various HC collegiums. All these were made before the SC scrapped the NJAC Act in October 2015. Out of them, 51 judges have been appointed and the remaining 64 were rejected by the SC collegium, according to sources.

A stand-off between the Modi government and the higher judiciary on the memorandum of procedure, which lays norms for appointment of judges to the SC and the 24 HCs, had resulted in appointments of at least 250 recommendations by several HCs remaining pending.

Finalisation of MoP

Justice system is hurt by Delay/ Dec 2016

Dhananjay Mahapatra, Six wise men of judiciary and an elephantine task, Nov 28 2016 : The Times of India

There are six wise men in the judiciary and the government -the CJI, the next four senior judges of the Supreme Court and the law minister. They are all over 62 years in age, with nearly four decades of professional experience in the field of law.

The five judges are in the SC collegium and in the past have headed collegiums in high courts. They perform the unenviable task of selecting people with honesty , competence and rectitude for appointment as judges of constitutional courts.

The law minister too has first-hand experience about selection of judges. In addition, he as a lawyer is aware of the manner of selection of judges and the lacunae in the system. He also has vast experience in handling politically sensitive legal cases.

In December 2015, a five-judge constitution bench headed by Justice J S Khehar, the next Chief Justice of India, took note of growing criticism of the opaqueness and arbitrary procedure adopted by the collegium and ordered redrafting of the Memorandum of Pro cedure (MoP) for selection of persons for appointment as judges. Almost a year has passed and the task has turned elephantine.

The five-judge constitution bench had its contribution in catalysing circumstances to make the task of finalising MoP an unenviable one. Earlier, the MoP was drafted by the government in consultation with the CJI. But the five-judge bench mandated that the government would redraft the MoP in consultation with the CJI, who had to convey the unanimous view of the collegium members. Unanimity has been eluding the six wise men for nearly a year. The draft MoP has been tossed between the executive and the judiciary a couple of times. But since the first week of August, it has been resting with the collegium. The five senior-most judges of the SC, including the CJI, have on a daily basis judicially advised and coerced warring litigants to sit across table to discuss and narrow down their differences. These five wise men are discovering a dark truth about life in the last one year -what is probably easy to sermonise while presiding over benches and armed with constitutional powers is not so easy when they themselves sit together to find common ground on MoP .

One wise man among the five in the SC has serious differences with the collegium's functional procedure.He says that views expressed by individual members, even if pertinent and worth considering, are brushed aside or summarily rejected by the majority . He stopped attending collegium meetings. Instead, he decided to pen down his views on the files after the four others dis cussed issues and recorded a decision. He says he is doing so to subject his recorded views to scrutiny if ever such an occasion arises.

We asked a majority of collegium members a simple question: Is it such a difficult task for six wise men to finalise transparent and uniform selection criteria for selection of judges to the SC and HCs? They said it was rather sad that such experienced people were finding it difficult to crystallise their views and reach common ground on this issue. How long will it take to finalise?

The law minister feels satisfied that despite non-finalisation of MoP , the government has appointed 120 judges to the SC and HCs, the second highest number since 1990. He says the government has sent the draft MoP to the collegium three and a half months ago. There is no response yet, he laments.The stagnancy on MoP does not augur well for the judiciary as an institution. More so, when nearly three crore cases are pending in the three-tier justice delivery system. What does not help is the vacancy of 500 judges in HCs and 5,000 in trial courts.

This grim scenario is threatening to envelop the justice delivery system that had long shed its swiftness.Instead of focusing on finding a solution to the stalemate, the CJI, the law minister and the attorney general were seen reminding each other about the constitutional `laxman rekha' for every organ of governance.

Democracy and judiciary are critically dependent on the oxygen called people's faith. Both must remove systemic blindfolds and work towards streamlining the judges' appointment procedure. The public is keenly watching the six wise men's experiments with an elephant called MoP .

Merit vs. seniority

Pradeep Thakur, SC pick settles merit-seniority dispute, Feb 14, 2017: The Times of India

The SC collegium's decision to deviate from seniority in recommending the elevation of Karnataka HC's Justice S Abdul Nazeer to the apex court is a hint that the Centre and the judiciary are narrowing their differences over the MoP. The MoP, drafted by the government and pending with the SC for over six months, seeks to give merit primacy over seniority in judges' elevation to the apex court. Justice Nazeer is fourth in ranking at the Karnataka HC. The government has cleared Nazeer's file along with that of four others recommended by the collegium for elevation to the SC. The others are chief justices Naveen Sinha, S K Kaul, Dipak Gupta, and S M Mallikarjunagouda of the high courts of Rajasthan, Madras, Chhattisgarh and Kerala.  

Consensus on national security

Dhananjay Mahapatra, SC-govt consensus on national security clause?, Feb 27, 2017: The Times of India

The Supreme Court collegium is likely to come around to accept the Centre's stance that it can turn down names of judges recommended for appointment to the high courts and Supreme Court on grounds of national security on the condition that the reasons are recorded in writing.

Sources said the collegium would soon convey to the government its new stand, in what can clear the way for the early appointment of judges of high courts and the Supreme Court. The MoP might be finalised by the month-end, sources said.

The national security clause has been one of the trickiest in the memorandum of procedure (MoP) for appointment of judges which has been hanging fire since December 2015, when a five-judge constitution bench entrusted its redrafting to the Centre in consultation with the CJI.The draft MoP prepared by the Centre had been tossed to the collegium and back without much progress on the `national security' clause for the past year.

In a recent meeting, members of the SC collegium led by CJI J S Khehar decided that while the Centre can reject a person for appointment as SC or HC judge under the national security clause, it would have to records reasons in writing as to how a particular appointment would run afoul of national security .



NJAC vs collegium: The debate decoded

The Hindu, December 14, 2015

The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts. Here is what you need to know about the row:

What is the NJAC?

The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.

What is the Collegium system?

The Collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges. However, it has no place in the Indian Constitution. The system was evolved through Supreme Court judgments in the Three Judges Cases (October 28, 1998)

Why is Collegium system being criticised?

The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court.

The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.”

How and when was the NJAC established?

The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014. Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.

Who will be in the NJAC?

It will consist of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination.

If politicians are involved, what about judicial independence?

The judiciary representatives in the NJAC -- the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through.

Arguments against the collegium system

Appointments made by the collegium system, the hits
The Times of India

Appointments made by the collegium system, the misses
The Times of India

Appointments made by the collegium system, the controversies
The Times of India

Justice Ruma Pal’s views, 2011

Dhananjay Mahapatra, Don't shoot the messenger, it will hurt the little man's faith in judiciary, Sep 12 2016 : The Times of India (Delhi)

Article 124 of the Consti tution provides that the government will appoint judges in consultation with the Chief Justice of India. To make independence of judiciary meaningful, the Supreme Court in the 1990s gave a novel interpretation to Article 124 to mean that selection of judges was the sole responsibility of a collegium of judges headed by the CJI.

Nearly 20 years after the collegium came into being, Justice Ruma Pal, one of the most respected SC judges, spoke from the comforts of retirement in November 2011 to describe the process of appointment of judges to the superior courts as “possibly the best kept secret of this country“.

She had said, “Consensus within the collegium is some times resolved through a trade-off, resulting in dubious appointments with disastrous consequences for litigants and credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and lobbying within the system.“

Her stinging remarks were hailed by many . Most knew what was happening. But even the most successful lawyers feared to go public with their views. Criticism of the collegium system could prove professionally hazardous, they knew.

Some criticised Justice Pal for speaking out after retirement. They said it would have been better if she had said these things and attempted to improve the system while being a sitting judge, especially when she was part of the collegium.

Justice J Chelameswar did that while being a sitting judge and being part of the collegium. He drew “we knew this“ chuckles from many lawyers.Most retired judges and exCJIs agreed with him and lauded him for his bold attempt to let some sunlight into the collegium's secret chamber.

But Justice Chelameswar faced criticism from renowned lawyer Fali S Nariman who said, “If a judge in the collegium does not like the way it functions (for lack of transparency or any other), he can quit and then complain about why he quit. People would then understand him better.“

Did anyone understand Justice Pal and attempt to take her views forward? Nariman commands respect for what he is. He set high standards for himself and others by quitting as additional solicitor general in protest against imposition of Emergency in 1975.

By this “quit and criticise“ advice to Justice Chelameswar, Nariman could not have meant to convey that the collegium process was either transparent or foolproof. If Justice Pal was right, so is Justice Chelameswar. They merely attempted to give a loud message that all is not well within the collegium system, which is accountable to no one. Will this advice be akin to shooting the messenger? Nariman's integrity , honesty and standing in the bar is impeccable. Yet, a section of lawyers has a grievance that even the great lawyer does not adhere to the golden principle that kith and kin of a judge should not practice in the same court.Should he quit the profession just because his son is an SC judge? No, he should not, because we know in our hearts why Nariman deservingly walks around the court corridors with a “can do no wrong“ halo. He must remain in the system and be an example of an exception to the principle that “kith and kin of a judge should not practice in the same court“. Let us take another argu ment. Selection of representatives by the people to the highest chambers of democracy -Parliament and assemblies -was described by the SC in Association for Democratic Reforms case [2002 (5) SCC 294] as of “utmost importance for governance of the country“.

It had said, “For maintaining purity of elections and healthy democracy , voters are re quired to be educated and well informed about the contesting candidates.“ Upholding voters' right to know, it directed candidates to reveal their educational and criminal antecedents along with asset details.

To drive home the importance of voters, the SC had quoted Winston Churchill, who had said, “At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper; no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.“

Selection of judges for higher judiciary , the repository of citizens' rights, is equally cardinal for public faith in the judiciary . We can rephrase Churchill's words, “At the bottom of all tributes paid to the judiciary is the little man, walking into a little court, with a little case, and making a little argument to get a little relief. No amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the little man's faith in judiciary .“

Justice Chelameswar's recent views were acknowledged a year ago by the Constitution bench which struck down the NJAC. Instead of him quitting, let his views be the stepping stone to find ways to strengthen the little man's faith in the system that selects judges and determines the character of judiciary .

We must remember that if free and fair elections are at the heart of parliamentary system of governance, free and fair selection of judges can be said to be at the heart of a credible judiciary .

Collegium system has not worked well: SC, 2015

The Times of India, Jun 17 2015

The Supreme Court has acknowledged the collegium system of judges appointing judges, which Parliament has replaced with National Judicial Appointments Commission (NJAC), has not worked well, reports Dhananjay Mahapatra.“The (collegium) system is good, but the implementation has gone wrong,“ a fivemember SC bench said. P 11 Senior advocate Fali S Nariman, lead lawyer for petitioners questioning the constitutional validity of the National Judicial Appointments Commission (NJAC), was made to face his own bitter criticism of the Supreme Courtdrafted collegium system for appointment of judges. Former solicitor general T R Andhyarujina and additional solicitor general Tushar Mehta cited excerpts from Nariman's autobiography `Before Memory Fades' to drive home the point that not only had Parliament and 20 states ratified the NJAC to re place the collegium system but Nariman, the lead opponent of NJAC, too was against the collegium system.

Nariman was the counsel who argued for petitioner `Supreme Court Advocates on Record' in the 1990s, leading to formulation of the collegium system by a nine-judge constitution bench. Prior to the collegium system, the executive appointed judges in consultation with the CJI.

In his book, Nariman had devoted an entire chapter to express disappointment at the working of the collegium system. He wrote, “I would suggest that the closed-circuit network of five judges should be disbanded.“

Nariman was unperturbed by the opponents' remarks. He told TOI he had made his views clear to the SC during initial arguments against the NJAC in which the primacy of judiciary in appointment of judges has been erased. He said he still felt the collegium system had not worked well. But that did not mean that the present form of NJAC was a good sub stitute, he said.

Collegium system good but implementation faulty : SC

The Times of India, Jun 17 2015

Dhananjay Mahapatra

AG submits list of bad appointments

During hearing of a bunch of petitions challenging the validity of the NJAC, the Centre and states have slammed the collegium's nontransparent and non-accountable manner of appointing judges to the Supreme Court and high courts. The attorney general even submitted a list of bad appointments to the five-judge Constitution bench hearing the matter.

“One is the (collegium) system itself. The other is the implementation of the system-provided procedure.The National Commission to Review Working of the Constitution headed by Justice M N Venkatachaliah had said when the collegium system was devised by the Supreme Court, it was hailed the world over as a unique and good system,“ the bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel said. “So, the (collegium) system is good, but the implementation has gone wrong. That does not mean the system is bad,“ the bench said in response to senior advocate T R Andhyarujina's argument that evolution of the collegium system was neither legally justified nor had worked satisfactorily . The court pointed out that the qualification for `eminent person' did not specify whether they should be Indians.“Can a foreigner be appointed as eminent person in NJAC?“ the bench asked.

Justice J Chelameswar’s dissenting judgment/ 2015

The Times of India, Oct 17 2015

AmitAnand Choudhary

Lone SC judge who batted for judicial appointments panel  In his lone yet strong dissent judgment against the collegium system, Justice J Chelameswar said appointment of judges should not remain the exclusive domain of the judiciary . The govern ment and civil society members must have a say in it. Faulting the functioning of the collegium system, he said while it had no accountability, there were instances where it had failed. He spoke for an urgent need for re form in the system and lamented that SC didn't approve of the NJAC, which was a step in that direction.

“The nation has witnessed many unpleasant events connected with judicial appointments -events which lend credence to speculation that the system established by the Second and Third Judges cases in its operational reality is perhaps not the best system for securing an independent and efficient judiciary,“ he said.

Terming the collegium system non-transparent, he said correspondence between the government and CJI and records of the consultation process were some of the country's best-guarded secrets.

“Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process.Proceedings of the collegium were opaque, inaccessible to public and history, barring oc casional leaks,“ he said.

“The records are beyond the reach of any person, including the judges of this court, who aren't lucky enough to become CJI. Such a state of affairs doesn't either enhance the credibility of the institution nor is it good for the people,“ he said.

The judge said the judiciary couldn't claim to be the sole protector of people's right and referred to instances where the SC had failed to live up to citizens' expectation in preserving liberties.

To assert that the judiciary alone is concerned with the preservation of liberties and does that job well is a dogmatic assumption bereft of evidentiary basis. To eliminate the executive from the process of selection “would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people“.

He said the fiasco created by the collegium in the appointment of Justice P D Dinakaran and appointment of a Madras HC judge were part of judicial records. There were many other cases when undeserving people were appointed judges.

“More instances were mentioned at the bar during the hearing to demonstrate not only the shallowness of the theory but also recommendations by the collegium have not necessarily always been in the best interests of the institution and the nation. It is not necessary to place on record all details, but it's sufficient to mention that the earlier mentioned two cases aren't the only examples of the inappropriate exercise of the power of the collegium,“ he said.

Justice J Chelameswar finds collegium procedure opaque/ 2016

Sr SC judge rips into CJI-headed collegium, Dhananjay Mahapatra Sep 03 2016 : The Times of India (Delhi)

In a stunning revelation, the Supreme Court's fifth-most senior judge, Justice J Chelameswar, told The Times of India that he has stopped attending meetings of the collegium headed by the Chief Justice of India as he finds its procedure “most opaque“, and the “majority gangs up“ to shoot down genuine objections against undesirable candidates being chosen to be judges of higher courts.

The collegium [in 2016] comprised CJI T S Thakur and Justices A R Dave, J S Khehar, Dipak Misra and Chelameswar. Breaking ranks with his colleagues in the collegium, which decides on the selection of judges to the SC and HCs, Chelameswar told TOI of his unhappiness over the entire process.

“I have written a letter to the Chief Justice on Thursday informing him that I will not be participating in the collegium's meetings henceforth.The system of selection of judges is not at all transparent.No reason, no opinion is recorded. Just two people decide the names and come back to the meeting and ask for a yes or no. Can a judge of the Supreme Court or high court be selected in such a manner?“ he asked. If a known corrupt person is being considered for ap pointment as a judge of the Supreme Court and if one of the members of the collegium says he has evidence to back his opposition to his appointment, should such a person's selection be decided on the basis of majority or rejected on the basis of the merit of the evidence given by the single member of the collegium?“ “My experience shows at people gang up in the col that people gang up in the collegium and selections are done without anyone recording his view and the basis of that view. The outside world does not know what is happening inside the collegium. The inside world too does not know much. Two people sit and decide the names and then ask others to give their yes and no to the names,“ he said. “Are we doing anything good for the country through this selection process?

Should it not be on the basis of merit? What if a person who is opposing a name has the most valid grounds? Can such valid grounds be brushed aside by majority or through expression of yes or no“ -were a few of the many questions Chelameswar asked. He had found no answer for his questions within the system, forcing him to inform the CJI that he would no be longer available for collegium meetings. He would, however, continue to go through the files relating to selection of judges and record his views on them.

Justice Chelameswar was the sole judge to record his dissent against the collegium system and to support the National Judicial Appointment Commission (NJAC) as a better alternative while sitting on a fivejudge constitution bench last year. Justices Khehar, Madan B Lokur, Kurian Joseph and Adarsh Goel had struck down NJAC although Joseph had agreed with Chelameswar that the collegium was an opaque system.

So what had sparked the sudden outburst? Was it because certain undesired persons got selected by the collegium, TOI asked Chelameswar, to which he said: “I am not happy with the manner in which the collegium selects persons for appointment as judges.

It's been going on for 20 years, but that's no solace for me to keep silent. I am not on individual names. I am raising an issue at a much higher level. The question is, are we doing something good for the country?“

3 ex-CJIs want transparency in SC collegium/ 2016

Dhananjay Mahapatra, 3 ex-CJIs echo judge's claim on SC collegium,Sep 04 2016 : The Times of India (Delhi)

`Transparency Is Equally Important'

Three former Chief Justices of India said on Saturday that “time has come for transparency in the Supreme Court collegium proceedings for selecting judges“ and lent support to Justice J Chelameswar's unprecedented decision to stay away from collegium meetings because of their “opacity“.

The three ex-CJIs are K G Balakrishnan, P Sathasivam and R M Lodha.

Chelameswar faulted the collegium proceedings on many counts -non-recording of minutes of the meetings, including the dissenting voice on appointment of a judge; suppressing the merit of opposition by brute majority within the collegium and a facade of consensus on the recommended names. Transparency and consensus are needed in the Supreme Court collegium proceedings for selecting judges, three former CJIs have said in support of Justice J Chelameswar's unprecedented decision to stay away from collegium meetings. During their tenure as CJIs, they had never faced a problem in achieving consensus among members of the collegium, they said.

Each believed in free and frank discussion on merits and demerits of a person in the zone of consideration and they said names were recommended only when there was a consensus. Justice Sathasivam, now governor of Kerala, told TOI that transparency as well as consensus are two crucial aspects of any selection process, more so when persons are selected for appointment as judges of the Supreme Court or the high courts.

Justice Lodha said smooth functioning of the collegium depends on two crucial aspects -the head of the institution (CJI) and the attempt to find consensus. “It takes time to find consensus. Before placing a name before the collegium, adequate material on antecedents, merit and capability of the person must be collected from every possible source. There should be free and frank exchange of views. If consensus eludes a particular name, it should not be recommended on the basis of majority ,“ he said.

Reflecting on Justice Chelameswar's opacity charge against collegium, Justices Sathasivam and Lodha favoured recording of views of the collegium members on names considered for appointment of judges to improve transparency . Justice Lodha said: “The views of members of the collegium were not recorded earlier because every member trusted the other. They had trust in each other. With pas sage of time and with all that is happening around, transparency is the need of the hour.“ Justice Balakrishnan agreed that there should be transparency and consensus among the collegium members prior to recommending a person for appointment.But he was against recording of collegium members' views on a person in the zone of consideration.

“Overwhelming majority of the persons considered for appointment to the Supreme Court are all chief justices of high courts. Members of the collegium may have an adverse view on a CJ of the HC and he is entitled to express it in the collegium meeting. But to record it is to give credence to a view as gospel. Moreover, if these records get leaked, the person officiating as HC CJ would find himself in a piquant situation. How can the views of collegium members expressing an unverified charge against a sitting CJ be recorded without giving the latter a chance to rebut? This will also be against principles of natural justice,“ Justice Balakrishnan said.

Justice Balakrishnan said: “The collegium is not a departmental promotion committee to record every charge against a person. Collegium is a body comprising senior-most Supreme Court judges who are responsible persons. If there is no consensus on a name, that person should never be recommended for appointment.“

But Justices Sathasivam and Lodha differed with Justice Balakrishnan on recording the meetings. “Transparency is important for the health of a system, be it collegium or any other selection process. Hence, recording views of collegium members is essential. Views of each member on a particular name in zone of consideration must be recorded and should form part of the record sent to the government along with the recommendation,“ Justice Sathasivam said. “However, consensus on a name recommended for appointment as judge is more important than transparency . If there is a single valid dissent to a name, that person should not be recommended for appointment as a judge,“ he added.

Collegium should make public its reasons: Justice Ruma Pal supports Justice Chelameswar

TOI INTERVIEW - `Truth and openness, no matter how uncomfortable, are better than gossip,' Sep 26 2016 : The Times of India

Former SC judge Justice Ruma Pal tells Arghya Sengupta why she believes there's merit in Justice Chelameswar's insistence on the collegium making public its reasons for selecting someone as a judge

Justice Ruma Pal, a former Supreme Court judge, says the collegium was formed to ensure transparency and that primacy of judges cannot be a cover to duplicate the secrecy that characterised previous appointments by the executive. Excerpts...

Your view on Justice J Chelameswar's comments on the need for transparency in the collegium

Justice Chelameswar is asking for nothing more than what was laid down in the Second Judges' Case (1993), that reasons for decisions to appoint need to be recorded. One reason the collegium was set up was to ensure the process could be more transparent. Recording reasons is fundamental to transparency . This is the standard the judiciary requires of others. Justice Chelameswar is justified in saying that it should follow the same standard.

What urgent reforms does the collegium need?

Most important is the laying down of objective criteria and recording of reasons in accordance with such criteria. While there is subjectivity in any selection, recording of reasons, as per established criteria, is a necessary safeguard to ensure sub jectivity isn't a guise for a decision on extraneous considerations. I don't believe the laying down of reasons is antithetical to the cause of those not selected.A person may be competent to be an competent to be an HC chief justice but not be ready to lay down the law by becoming an SC judge. I see no reason why such a person's non-selection would reflect on his ability to function as an HC chief justice, as long as no negative remarks are made about him.

Does the prospect of elevation to the SC affect the attitude, behaviour, manner of judging of HC judges?

Whether it does or doesn't isn't the issue. The issue is that it can. If one is inclined that way , one would pass a judgment that wouldn't rock the boat, so that one's chances of elevation to the SC isn't jeopardised.The solution to the problem, which will remain irrespective of whether the power of appointment is with the collegium or the government, is systemic. The retirement age difference of HC and SC judges must go. The original reason for providing additional tenure to SC judges (up to 65 years) was to incentivise fine HC judges to leave their hometowns for Delhi. This reason is no longer valid. If the age difference is removed, the expectation of looking towards the SC for additional tenure will substantially reduce.

Could the NJAC have rectified some of these ills?

I've always been in favour of a judicial commission. This is neither an original thought, nor a recent one. Justice Bhagwati in the First Judges' Case (1981) said so. Justice D A Desai, as Law Commission chairman in 1987, said so. Chief Justice Venkatachalaiah reiterated it in the report of the National Commission to Review the Working of the Constitution. None of them is a member of government. The only difference between the NJAC and these enumerations was over who would be part of the commission. The SC has often made the Law Commission's recommendations binding in other cases. It should have considered this history more seriously in the NJAC case too. Safeguards could have been incorporated where it felt judicial independence might be compromised.

SC says primacy of judges is paramount and the NJAC compromised it...

If the whole proceeding is recorded and there's transparency with public scrutiny , primacy of judges can be accorded. But primacy cannot be a cover to duplicate the secrecy that characterised previous appointments by the executive. This fear that surrounds transparency is overblown. Take the disclosure of judges' assets. When it was suggested that judges must disclose assets, it created a hue and cry . Now it takes place as a matter of course.There's no reason why collegium meeting minutes being made public wouldn't become a non-issue too. It's been made an issue among a particular group of people. Truth and open ness, no matter how uncomfortable, are better than gossip, imagination or rumour. They destroy judiciary's credibility far more than the truth.

Is it possible in the current climate to reform the collegium without letting the government affect the judiciary's independence?

Justice Chelameswar says decisions to appoint should be taken by circulation. Why a person is selected or not should be on record. If someone has changed one's mind on an appointee, the reasons should be known. For these and similar changes, there's no reason for the court to agree to a Memorandum of Procedure with the government.It'll be in the judiciary's interest to do so itself. In a full court, judges can lay down objective criteria, as was done in the case of laying down the Restatement of Values of Judicial Life, so that everyone knows the internal process and criteria to be followed for selection. This will allay suspicions that people are chosen for reasons other than merit without affecting the judiciary's independence.

Ex-HC CJ Backs Chelameswar's Take On Judges' Selection

Justice J Chelameswar of the Supreme Court, soon to be No.3 in the apex court heirarchy , has found another supporter for his rebellion against the collegium which selects judges for the SC and 24 high courts.

Former Delhi HC chief justice and ex-chairman of the Law Commission Justice A P Shah has come out in support of the senior SC judge, who has refused to attend collegium meetings and has called for more transparency .Justice Shah called the apex court collegium “out of step with democratic culture“ which needed urgent reforms as it “lacks transparency , is inherently secretive and provides for no oversight“.

Delivering the Justice Krishna Iyer memorial lecture in Kochi on Saturday , Justice Shah warned that the confrontation between the government and the higher judiciary was likely to further escalate in the coming days with neither side ready to de fuse the tension. “Things have come to such a pass that it seems to me now that the judiciary and the executive are on a collision course,“ he said.

“It is evident that the collegium system cannot continue to exist in its present form. Until a viable alternative is found, though, reforms in the existing process of selection are urgently needed. This is precisely what Justice Chelameswar did, by his action of walking out of the collegium, and insisting on transparent procedures,“ Justice Shah said.

The former Law Commission chairman added, “Transparency requires that there are clearly established criteria for selection, and that records of selection meetings are properly maintained with views of those who participa ted properly recorded, to ensure that selections are not arbitrary .“ His assertions are similar to the demands made by Justice Chelameswar.

Justice Shah recalled the recent confrontation between the government and the judiciary -the Centre returning 43 recommendations for appointment as HC judges to the SC collegium which reiterated 36 of them -and observed that this was likely to further escalate tension.

Referring to the Constituent Assembly debate, Justice Shah quoted from a speech of Dr B R Ambedkar saying the architect of the Constitution had opposed absolute authority in appointment of judges to any single authority , either the executive or the Chief Justice of India.

“To allow the chief justi ce practically a veto upon the appointment of judges is really to transfer the authority to the chief justice which we are not prepared to vest in the President or the government of the day . I, therefore, think that is also a dangerous proposition,“ Ambedkar had said. This resulted in Articles 124 and 217 where the power of appointment, “although residing with the executive was exercisable only after consultation with the Chief Justice of India“.

Justice Shah questioned the rationale in the `three judges' case that led to the collegium system. “No method of appointment was prescribed -the collegium had no office, no institutional staff or framework, no mechanism to gather data, and no criteria for selection.The system was ad hoc and shrouded in secrecy ,“ he said, and observed that through the `three judges' case, “the judiciary usurped the power to elevate justices through a distorted interpretation of Articles 124 and 217 of the Constitution“.

Collegium system: Nariman on its pitfalls

The Times of India, Nov 04 2015

Dhananjay Mahapatra

Nariman on the Dinakaran's case and the collegium

Lone Dissenting Judge's View More Sound

Fali S Nariman who opposed the NJAC tooth and nail, unabashedly praised Justice J Chelameswar's lone dissent ing judgment pointing out ma ladies in the collegium system and argued that it must be an eye-opener for urgent reforms in the opaque judges-selec ting-judges system. Nariman said judges in the selection body must be recep tive to views of others. “I will give the last word to the dissenting judgment, because it has got more acceptability,“ Nariman said and went on to narrate the dark phase of the collegium, which, when headed by CJI K G Balakrishnan, had in August 2009 recommended appointment of Justice P D Dinakaran as an SC judge. Dinakaran faced a motion for his removal in Parliament on charges of corruption. The Rajya Sabha chairman had set up an inquiry committee headed by Justice Khehar.Before the inquiry was completed, Dinakaran resigned, putting an end to an inglorious chapter in judiciary.

Nariman gave hitherto unknown details of what was going on then in the collegium.“In Dinakaran's case, I must say something. Very eminent people from Chennai wanted to say something about Dinakaran to the then CJI. Neither the CJI nor any of the five members of the then collegium agreed to meet them. I went and requested the CJI to meet them. But we were all hounded out. If we had gone to the press about the attitude of the collegium members, it would have broken up, collapsed. I was so disgusted that in anger I said I would not appear in the courts of the CJI or any other member of the collegium if Dinakaran was appointed judge.Some judges made nasty comments about me,“ he said.

“The Dinakaran episode told us there was lack of receptivity in the collegium. If a responsible member of the bar wants to tell the collegium about a person being considered for the post of a judge, why should the collegium members not hear him out,“ he asked.

Nariman said judges in the selection body must be recep tive to views of others. “I will give the last word to the dissenting judgment, because it has got more acceptability,“ Nariman said and went on to narrate the dark phase of the collegium, which, when headed by CJI K G Balakrishnan, had in August 2009 recommended appointment of Justice P D Dinakaran as an SC judge.

Dinakaran faced a motion for his removal in Parliament on charges of corruption. The Rajya Sabha chairman had set up an inquiry committee headed by Justice Khehar.Before the inquiry was completed, Dinakaran resigned, putting an end to an inglorious chapter in judiciary.

Nariman gave hitherto unknown details of what was going on then in the collegium.“In Dinakaran's case, I must say something. Very eminent people from Chennai wanted to say something about Dinakaran to the then CJI. Neither the CJI nor any of the five members of the then collegium agreed to meet them. I went and requested the CJI to meet them. But we were all hounded out. If we had gone to the press about the attitude of the collegium members, it would have broken up, collapsed. I was so disgusted that in anger I said I would not appear in the courts of the CJI or any other member of the collegium if Dinakaran was appointed judge.Some judges made nasty comments about me,“ he said.

“The Dinakaran episode told us there was lack of receptivity in the collegium. If a responsible member of the bar wants to tell the collegium about a person being considered for the post of a judge, why should the collegium members not hear him out,“ he asked.

Since 2000, 43 CJs Of 18 High Courts Couldn’t Make It To SC

From the archives of The Times of India 2010

Retired hurt: Does Justice Shah have valid cause to complain?

Since 2000, 43 CJs Of 18 High Courts Couldn’t Make It To SC

Dhananjay Mahapatra

A bowler is allowed to aim two bouncers per over at batsmen. Sometimes, the bouncers catch batsmen by surprise and they either lose their wicket or get hurt. But no batsman complains about the rule that allows fast bowlers to hurl bouncers. At least, Rahul Dravid did not when he was felled by a nasty bouncer from Shahadat Hossain in Bangladesh.

Justice A P Shah played a good innings as a high court judge and as the Chief Justice of Delhi HC. Some former Chief Justices of India, who despite not having ever evaluated him as a judge or seen him from close quarters, also gave him good grades. Unlike Dravid, he retired recently and made it public that he was terribly hurt at not being elevated to the Supreme Court. He also complained about lack of transparency in the selection of judges to the top court.

The system, transparent or not, has always been there and Shah was chosen as a judge of the HC through that. Can anyone be seen complaining that there was a better choice available at the time Shah was appointed as a judge?

There are 16,609 trial court judges, who look forward to promotion as HC judges at some point in their career. But there are only 886 posts of HC judges. So, many of them retire as district judges without ever becoming an HC judge. Should all of them start questioning the selection process?

From among the 886 HC judges, only 26 used to be elevated to the Supreme Court, whose strength has now been increased to 31. An overwhelming majority of HC judges genuinely think they have the mettle to make it to the SC.

Most retire disappointed. Justice Shah will be surprised to know that since 2000, as many as 43 chief justices of 18 HCs have retired without being elevated to the apex court. But no one else aired a grievance in public against the system.

This is not to say that Justice Shah may not have a genuine grievance against his non-elevation to the SC. Let’s go by his suggestion that the system is non-transparent and hence, many a person gets eliminated. There is a sordid flip side, if all material considered by the collegium relating to appointment or elevation of a judge were to be made public.

The material could include unsubstantiated and wild allegations levelled against a judge. If they were to be made public, there could never be any elevation nor appointment to the HCs or to the SC. For, the collegium is yet to consider an appointment or elevation of a judge when it did not receive a letter containing complaints against the person concerned.

All of these proposed considerations for appointment or elevation concern either a district judge, a senior advocate or a HC judge or chief justice. What happens to his future, if such complaints are made public? Would he be able to lead a normal professional life, given the prevailing climate of suspicion where the shadow is always longer than the object?

Justice Shah should take a lesson or two from two great left-arm spinners — Rajinder Goel and Padmakar Shivalkar. While Goel had a first-class wicket tally of 640, Shivalkar had 589. Yet, both of them never played Tests for India. Their ability with the ball was eclipsed by the awesome spin quartet — Bedi, Prasanna, Chandrashekar and Venkatraghavan — that operated during those days. Both Goel and Shivalkar played for nearly 30 years in the domestic circuit and retired graciously.

Be it cricket or judiciary, not every selection can be explained nor can every rejection be logical. Celebrated US Supreme Court Judge, Oliver Wendell Holmes, Jr, once said, ‘‘The life of the law has not been logic; it has been experience.’’

No top jurist made SC judge

The Times of India, Nov 11 2015

Dhananjay Mahapatra

It's wrong to ignore constitutional provision

In its 65 years of existence, the Supreme Court has never got a `distinguished jurist' as a judge, making the Union government pitch for the implementation of a constitutional provision mandating the appointment of this rare breed to the highest court.

In its suggestions for the improvement of the collegium system, which the SC revived after quashing the National Judicial Appointments Commission (NJAC), the Centre said the non-consideration of `distinguished jurists' (experts in law) as judges of the SC despite the Constitution so mandating was wrong.

The Constitution, under Article 124, provides for the Article 124, provides for the appointment of SC judges from three sources -a person who has been a high court judge for five years; who has been an HC advocate for 10 years; and, “a person who is, in the opinion of the President, a distinguished jurist“. Interestingly , the Constitution does not provide for the appointment of a `distinguished jurist' -Article 217(2) says judicial officers and advocates with 10 years' experience can be appointed as HC judges.

The Centre said the collegium system has traditional y selected high court chief ustices for appointment as SC judges, ignoring the two other pools of talent. The government requested a five udge bench to introduce specific criteria “for appointment of members of the bar and distinguished jurists to the SC and special emphasis placed on appointing judges from these categories given their historic under-representation“.

“Merit should not be sacrificed for seniority and a deserving candidate who may be a senior judge of an HC should also be considered for elevation to the Supreme Court without him becoming chief justice of a HC,“ the Centre said.

The Centre also suggested an annual public scrutiny of the quality of appointments made by the collegium. “Every year, an annual report on appointments ought to be published and made publicly available. This report will detail the number of appointments made and the process followed.

Collegium system failed: Law panel chief

Law commission chairman Justice A P Shah said THE collegium system’s conduct has been opaque and that appointments to higher judiciary lacked transparency.

The collegium system is so opaque that even if someone wants to speak out, he cannot do it having come through the same system, he said. “The collegium system has completely failed, judges are appointed on unknown criteria,“ Justice Shah said, calling the apex court system of appointing judges as a cabal. “It has failed as favourites get appointed and the rest are left out,“ said the former chief justice of Delhi HC. He pointed out that the collegium had gone ahead to appoint a judge at the age of 60 years when the criteria clearly says any appointment to higher judiciary has to be below the age of 55.

Centre’s arguments in support of NJAC

The Times of India, Jun 06 2015

In brief: Centre's arguments in support of NJAC; Graphic courtesy: The Times of India, Jun 06 2015

Pradeep Thakur

In 2 decades, govt faulted 20 collegium-approved judges

The central government has in the last two decades raised objections against 15-20 recommendations of the Supreme Court collegium for appointment of judges in SC and high courts.Some of the objections were also made against the recommendations for appointment of chief justices of HCs. The information has been collated to address queries raised by a five-judge constitution bench hearing a case on the validity of the National Judicial Appointments Commission. These are part of the arguments in support of NJAC the government may present before the bench when the hearing resumes on Monday.

The Centre's objections were based on Intelligence Bureau findings, a process followed by the government in case of appointment of a new judge. Though an IB report is not `required' in case of a permanent judge's elevation, but the government may raise objections if it receives an adverse report.

A source said, in most of the cases where the government had raised objections against the collegium's recommendations, the apex court had accepted them and dropped appointments, barring three or four cases where the SC had reiterated its decision. Gopal Subramanium's case was one of them who later withdrew his candidature for SC appointment.

Earlier, the SC had asked the government to place on record facts that how many times the Centre had raised objections against collegium's recommendations and in how many cases the SC reiterated its decision.

The government has been strongly defending the NJAC which has replaced the two decades old collegium system. The six-member NJAC has dominance of apex court judges as three members are from the SC, including the CJI who is the chairman of the commission. Besides the CJI and two senior-most judges of the SC, the NJAC has the law minister and two eminent persons as the other members of the commission.

Though the NJAC was notified in April, it could not be constituted as the CJI refused to be part of the process citing pendency of the case.

The two eminent persons in the NJAC are to be appointed by a committee comprising the Prime Minister, the CJI and the leader of the largest party in Lok Sabha. The first meeting of the committee was scheduled then called off due to refusal of the CJI.

The government is likely to reiterate its commitment to the independence of the judiciary at the same time defending the NJAC.

“The independence of judiciary is derived from the service terms and condition of judges that cannot be changed to their disadvantage,“ the source said.

The collegium system undermined the efficiency of courts: Centre

The Times of India, May 09 2015

Collegium aids favouritism: Centre

Dhananjay Mahapatra

The government kept up its offensive against the judiciary's monopoly in the appointment of judges by saying that the collegium system worked like a huge favour-dispensing scheme which undermined the efficiency of courts. Supplementing attorney general Mukul Rohatgi's belligerence in seeking reference of petitions challenging validity of the National Judicial Appointments Commission (NJAC) to an 11-judge bench, solicitor general Ranjit Kumar was blunt when he said on Friday , “The collegium system has done little to strengthen independence of judiciary . It has created intra-dependence among the judiciary .“

Arguing before a bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Goel, Kumar said the collegium's choices were thrust upon chief justices of high courts as fait accompli. For appointments to high courts, the collegiums comprised the CJI and three senior-most judges of the Supreme Court.

The SG said, “I am not taking any name though I have at least 20 such examples. In 1993, the SC appropriated the power to appoint judges from the executive. It is not for judicial independence but intra-dependence. There is a former chief justice, who became an SC judge, who had said `I have to obey my masters to appoint judges in the HC because I want to go to Supreme Court'.“

The startling allegation came just before the bench broke for lunch and that was the reason why there was no response to it from the court.But if the SG's charges are true, it means there was an unwritten quid pro quo in judges' appointment -the chief justices of HCs blindly agree to the choices of the collegium to improve their chances for elevation to the Supreme Court.

Kumar said, “The collegium system has no transparency and lacks accountability. In contrast, the National Judicial Appointments Commission, brought in by a constitutional amendment, has the necessary checks and balances. NJAC will strengthen the independence of judiciary .“

Attorney general Mukul Rohatgi said the problem faced by a few additional judges, whose two-year tenure could come to an end during pendency of the challenge to NJAC's validity , should not deter the court from referring it to an 11-judge bench. “I am ready for an interim order from the court on the issue to protect the additional judges,“ he said.

“What is the hesitation in referring the matter to an 11judge bench? It is a matter of huge importance,“ the AG said. But the bench retorted, “AG, you please don't start deciding how many judges should hear the matter.“

Collegium appointed many inefficient judges: Centre

The Times of India, Jun 11 2015

AmitAnand Choudhary

A day after Supreme Court spoke out against the Centre's “hit-andtrial“ method of appointing judges -in a reference to the replacement of the old SC collegium system with the National Judicial Appointments Committee -attorney general Mukul Rohatgi on Wednesday told the SC that the collegium had appointed many undeserving and inefficient judges to the apex court and high courts who went on to create havoc in the country . Rohatgi submitted in a closed envelope a list of eight cases of what he called “bad appointments and selection“ at the instance of the SC collegium. The attorney general followed that up by referring to what he called questionable conduct by many judges, including three in Supreme Court, as he argued that the notion that only judges could appoint good judges was a “myth“.

He referred to a recent case of a Madras HC judge threatening to initiate contempt proceedings against the chief justice of the court, and asked why action had not been taken against him by the SC, which should have barred him from handling cases. “Havoc is being created in the country due to appointment of such judges.One bad fish can spoil the whole pond,“ the AG said. Attorney general Mukul Rohatgi on Wednesday cited what he called “bad appointments and selection“ of judges, in response to a five-judge Constitution bench headed by Justice J S Khehar asking the government to back up its contention against the collegium by citing instances of bad choices.

Rohatgi referred to the truancy of a former SC judge who generated headlines for lack of punctuality and could hold hearings only in afternoons. The judge used to come late even in the high court but still the collegium recommended his elevation to the SC. “This was the habit going on for the last ten years when the judge was in HC. If such was the track record then how was the judge promoted to the Supreme Court.This is not a rare single case of judicial indiscipline; many judges in various high courts come late and refuse to take up cases after lunch but the judiciary didn't take action against them,“ the AG said, adding that the government did not raise the issue as it would have been termed as interference in the independence of judiciary .

Rohatgi also pointed out that The Times of India was threatened with contempt of court for writing about the judge's lack of punctuality . Significantly , Fali S Nariman, the noted constitutional lawyer who is opposing the government on NJAC, supported Rohatgi on this. The Bench, too, chose not to join issue with him, preferring to switch to a lighter note, saying, “They are lordship in the true sense.“

AG, however, remained serious and moved to cite two other examples of appointments to the apex court by the collegium. He recalled the case of a SC judge who, according to him, was seen as inefficient, and that of yet another whose observations and comments were seen as belittling the dignity of a Supreme Court judge.

Appearing before the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, the AG said the collegium system was not following the principle of meritocracy resulting in inefficient judges being appointed at the expense of deserving candidates. Without taking any names, he said many judg es in the SC and various high courts were not following court decorum and discipline.

Rohatgi said in many cases the collegium did not take into account the merit of a person and decisions to recommend names were taken on the basis of extraneous considerations.He said a retired SC judge in his entire life as a judge in various HCs did not dispose of more than 100 cases, but was still appointed to the SC; he was now a member of a Commission. The AG said there were many deserving judges who had disposed of thousands of cases but were not being promoted. He said some radical thought was required to shake up the present judicial system and NJAC was a step to bring accountability and transparency in the system.

The bench agreed with his contention that collegium made mistakes, but said that could not be the only ground to replace it.

Mr Justice Cyriac Joseph's orders

Mr Mukul Rohatgi’s arguments

The Times of India, Jun 20 2015

89 judgments in all of 115 pages: Rohatgi keeps up attack on judge

Attorney general Mukul Rohatgi ignited the sedate, academic arguments on the issue of NJAC's constitutional validity in the Supreme Court by reiterating his charge against former SC judge Justice Cyriac Joseph that he was miserly in authoring judgments. Rohatgi informed a fivejudge bench headed by Justice J S Khehar that Justice Joseph, while in Uttarakhand high court, had delivered 162 judgments. Of this, he produced copies of 89 judgments that together ran into 115 pages.

“These cannot be even called orders as they did not decide rights of the parties.These are merely stating that the petition has become infructuous or allowing the petition to be withdrawn. In Delhi high court, I know of a worse situation as I prac tised extensively when Justice Joseph was a judge. He had reserved more than 100 judgments and went out, on being transferred, without delivering the judgments, warranting re-hearing of the cases,“ Rohatgi said. Senior advocate Anil Divan shared the AG's impression.

“Of the 162 judgments, two could be called judgments as one ran into 15 pages and the other 27 pages. But both these judgments were authored by the other judge who was part of the bench headed by Justice Joseph,“ the AG said.

The court closed the chapter saying “we are not holding an inquiry into this“, and focused on arguments on petitions challenging the constitutional validity of National Judicial Appointments Commission (NJAC), which replaced the 20-year-old collegium system wherein judges selected judges for the SC and HCs.

Mr Fali S Nariman’s arguments

Fali S Nariman, had argued for lead petitioner Supreme Court Advocates-on Record Association and said states had ratified only the constitutional amendment and not the NJAC. Hence, the government could not legitimately claim that the NJAC had been ratified by states.

Moreover, the NJAC brought out significant changes in the procedure for appointment of judges and hence should have been a part of the constitutional amendment, he said. “By not making the NJAC procedure a part of the constitutional amendment, the government has played a fraud on the Constitution which gave a lot of importance to judicial independence,“ Nariman said.

Appearing for Bar Association of India, senior advocate Anil Divan said the NJAC had opened the door for political interference in the appointment of judges, which has consistently been regarded taboo, both by the Constitution-framers and during the long period of working of the Constitution.

He distinguished the NJAC from judicial appointment commissions working in other countries, and said even in the UK, the selection process did not involve any minister or bureaucrat.

Collegium breeds nepotism: Lawyers' Campaign

The Times of India, Aug 16 2016

Lawyers question system, want their own as judges

The National Lawyers' Campaign for Judicial Transparency and Reforms said in a press release that since the collegium system came into vogue through SC judgements in the 1990s, statistics show that 50% of judges appointed to HCs were related to judges, their erstwhile juniors or senior lawyers.

Lawyers seek CJI's recusal from judges' appointment case

Dhananjay Mahapatra, Lawyers seek CJI's recusal from judges' appointment case, Nov 04 2016 : The Times of India

A lawyers' body is set to move the Supreme Court seeking recusal of Chief Justice TS Thakur from hearing the petitions seeking expeditious filling up of vacancies in high courts, which are functioning at less than 60% strength.

National Lawyers' Campaign for Judicial Transparency and Reforms, through joint secretary AC Philip, has prepared an application to intervene in the pending petitions [in Nov 2016]. A bench of CJI, Justices DY Chandrachud and LN Rao had slammed the Centre for sitting over the recommendations by the collegium for appointment of high court judges.

It had warned the Centre that if the appointments were not expedited, it would be constrained to summon the secretary in the Prime Minister's Office and justice department secretary to seek explanations on the delay in appointment of judges. The attorney general had sought time till November 11 to report back on the progress in the appointments.

The lawyers' body in its application said judicial propriety demanded that the CJI and Justice Chandrachud recused themselves from hearing the petitions as no one could be a judge in his own case.

NLC president Mathew J Nedumpara told TOI that the CJI, on the administrative side, headed the collegium which recommended to the government the names for appointment as judges of the HCs. “How can the CJI on the judicial side hear petitions and seek expedite implementation of recommendations made by a body headed by him?“ he asked.

Stalemate on the memorandum of procedure

hurdle in judges' selection Nov 20 2016 : The Times of India (Delhi)

i) The average number of judges appointed every year, 1990-2016;
ii) The highest number of judges appointed in a year;
iii) The number of judges appointed by the NDA government in 2016
The Times of India

HC Judges Named In 2016 Against Average 80'

(In 2016 Chief Justice T S Thakur said that the government was deliberately delaying the appointment of judges to high courts) Rejecting these accusations, the Centre hit back with statistics, disclosing that it had appointed 120 HC judges this year, against an annual average of 80 appointments since 1990.

After scanning records available on appointment of judges since 1990, the law ministry said that on an average, 80 judges were appointed to HCs on the recommendation of the judiciary every year. Two judgments of the Supreme Court in the 1990s took away from the executive the power to select judges.

“The number of judges appointed was 121in 2013, the highest in a year since 1990. But the Union government by November this year has appointed 120 judges, just one short of the highest number ever appointed in a year in the last 25 years. Is it fair in this context to accuse the government of delaying appointment of judges to the HCs? Does the statistics justify the remark that the government is attempting to lock out the HCs?“ a ministry source asked.

“We have always honoured recommendations from the collegium for appointment of a fairly selected person as judge of a high court.We have been prompt. The statistics tell the true story. In 2016, we are just one short of the record number of judges ever appointed in a single calendar year,“ law minister Ravi Shankar Prasad told TOI.

Though the minister refu sed to be drawn into the ongoing spat between the executive and judiciary over appointments, sources in the ministry were quite vocal about their disagreement with the views emanating from the Supreme Court on the appointment process. They did concede that very few appointments took place in 2015, mainly due to the stalemate over the National Judicial Appointments Commission. Sources in the ministry attributed the fall in appointments in 2015 to the pendency of petitions challenging the constitutional validity of the National Judicial Appointments Commission and refusal of the then Chief Justice H L Dattu to head the NJAC when the Supreme Court was adjudicating its validity .

Though the government has been appointing judges to the high courts as fast as it could after proper scrutiny , the main stumbling block in speeding up the process is non-finalisation of the memorandum of procedure (MoP) for effecting appointments though HCs are reeling under a 43% vacancy in post of judges.

A five-judge bench of the SC headed by Justice J S Khehar, who is slated to become Chief Justice of India on January 4, had on October 15 last year struck down the NJAC but conceded there were inherent lacunae in the collegium system.

On December 15, it directed the Centre to redraft the MoP in consultation with the CJI, who would voice opinion after taking view of all members.

A source said: “The ministry had sent the redrafted MoP to the collegium on August 7. Nearly three and half months have passed since then. The government is yet to hear from the collegium on this issue. MoP is the crucial component of selection of judges. Why is it being delayed? Can the SC on judicial side force the government to continue with the appointment of judges which clearly goes against the mandate of the fivejudge bench?“

Appointments made, yearwise

2016: 126 HC judges appointed, highest in 25 years

Dhananjay Mahapatra, 126 HC judges appointed, Dec 11 2016: The Times of India

Strength of courts, number of judges and cases filed, 1956-2009; The Times of India, Jan 12, 2017

Record no. of judges appointed to HCs in 2016, but it's not enough

At the receiving end from the Supreme Court for sitting over recommendations for appointment of judges to high courts, the Centre said on Saturday that it had appointed 126 HC judges in 2016, the highest in the last 25 years.

The president appointed six more judges last week -five to the Patna HC and one to the Punjab and Haryana HC -to surpass the record of 121 judges appointed by UPA government in 2013.But this record appointment do es little to improve the functioning of HCs, which are reeling under 40% vacancies.

For example, the five appointments to the Patna HC takes the tally of judges to 32 against a sanctioned strength of 56. This means, there are still 43% vacancies. In Punjab and Haryana HC, the number of judges with the lone appointment goes to 47 against a sanctioned strength of 85, with 45% of posts still remaining vacant.

Government sources said that the record appointment in a single year was also noteworthy since it took place despite the memorandum of procedure (MoP) for appointment of judges still to be finalised.

A five-judge bench headed by Justice J S Khehar, the next Chief Justice of India, struck down the National Judicial Appointments Commission and brought back the collegium system in October last year. Two months later, it acknowledged the widespread criticism of the collegium's opaque procedure for judges' selection and asked the Centre to redraft the MoP. The last redrafted version of the MoP was sent by the law ministry to CJI T S Thakurheaded collegium in the first week of August. It is yet to be discussed in the collegium.

However, the CJI had taken umbrage to delay in appointments and had slammed the Centre for sitting over files in what he felt was an attempt to lock out the judiciary . Days after the CJI lashed out at the delay in appointments, the Centre returned 37 names recommended for appointment as judges of HCs to the collegium for reconsideration. The collegium threw the ball back to the Centre's court by reiterating each of the 37 names.

“The 37 names reiterated by the collegium in various HCs are under process,“ a ministry source said. The source said that at present 75 names for appointment to nine HCs were pending with the collegium for consideration.

Ad hoc, fast-track court judges

2012, SC: MC Verma: ad hoc judges have no right to post

The Times of India, Aug 09 2016

Dhananjay Mahapatra

Fast-track court judge fails CJI's law test

An aspiring district judge, ordered by a high court to be appointed to that post, ended up ruining his case as he failed to answer CJI T S Thakur's elementary questions on law and procedure in a packed courtroom. As a result, the Supreme Court stayed his appointment.

Having served as a fasttrack court judge in Arunachal Pradesh for 12 years on an ad hoc basis, he was eligible to be absorbed as a regular district judge. But the Gauhati high court, on the administrative side, examined the Scheduled Tribe fast-track judge's performance and rejected his appointment. The judge had appeared for the written exam for recruitment of district judges in Arunachal Judicial Service and failed to secure 35%, the minimum criteria for ST candidates. After failing to get through the normal process, the judicial offi cer moved the Gauhati high court, which directed his appointment as district judge considering his length of service. The administrative side of the HC appealed against the order before the SC through advocate Sneha Kalita.

Appearing for the HC, senior advocate Vijay Hansaria told a bench of Chief Justice T S Thakur and Justices A M Khanwilkar and D Y Chandrachud that in 2012, the SC in Mahesh Chandra Verma case had ruled that those appointed on ad hoc basis as fast-track court judges had no right to the post.The SC had directed that these ad hoc appointees would have to undergo written examination as per the guidelines laid down in Brij Mohan Lal case, Hansaria said. After hearing arguments, the bench asked the petitioner's counsel whether the client was present in court. Finding that he was present, the CJI called him before the bench and decided to take an informal test.

The CJI asked, “You have been a judge for 12 years, so tell us in a suit for specific performance, what is the first thing that a judge would look for in the case?“ Finding his answers way off the mark, the bench decided to put the most elementary question in law, “What is the difference between Section 304-I and 304-II of Indian Penal Code?“ The judicial officer fumbled even as all eyes in the packed courtroom were on him.The court asked another elementary question, “First appeal is filed under what provision?“ Even more nervous, the man told the bench that he had been out of touch with law and procedure for the last three years as he had been knocking on various doors for his absorption as regular district judge.

But having taken an impromptu test, the bench stayed the HC order directing his appointment as district judge on regular basis.

See also

Supreme Court: India (mainly SC's rulings)

Supreme Court, India: Administrative issues

Supreme Court: India: Chief Justices

Supreme Court: India: Sitting judges

Judicial appointments, senior: India mainly the Collegium debate

Judiciary: India (powers, functions)

Judiciary, superior: India

Judiciary: India