Supreme Court Collegium: Judicial oligarchy crumbles – Sandhya Jain

Supreme Court of India

Sandhya Jain is the editor of Vijayvaani.Media reports hint that the Centre is reluctant to clear the suggested [judicial] appointments as those being recommended are related to judges or politicians. Since Justice Chelameswar has revolted against the system by which such selections were made, the panel of 250 nominees must be scrapped immediately. A fresh selection must be made with Government exercising its supremacy. – Sandhya Jain

Justice Jasti Chelameswar has struck a powerful blow against the poisonous legacy of the Supreme Court in the Second Judges Case, 1993, which usurped the Executive’s power to appoint judges and replaced it with an opaque system of selection by dominant judges. By breaking the omerta code on this sham, Justice Chelameswar has shattered the ethical fig-leaf beneath which a brotherhood of judges functioned without accountability even within the closed circle that supposedly took decisions by “consensus”.

By refusing to attend meetings of the Supreme Court “collegium“, a word that does not exist in the constitution, Justice Chelameswar has punctured the legitimacy of the system and put his brother judges in a bind. By not recusing himself from the collegium—which could replace him with a more amenable judge—he has forced it to make itself accountable, first to all collegium members, and then to the judicial community, including the Bar Association. This revolutionary step disrupts a status quo contrived during an era of weakening central authority.

Such misappropriation of power was unthinkable during the reign of Jawaharlal Nehru, Indira Gandhi or Rajiv Gandhi, who ruled with absolute majorities. Now, after a hiatus of over two decades, the Centre is once again ruled by a party with its own majority in Parliament (in coalition by choice); hence, it would be appropriate to restore the constitutional position. This is not to say that weak coalition regimes should have their authority eroded by judicial overreach.

Chief Justice T. S ThakurAccording to media reports, Justice Chelameswar has written a three-page letter to Chief Justice of India, T. S. Thakur, asserting that there is no point in attending collegium meetings if its deliberations are kept under wraps. Though the National Judicial Accountability Judgment (October 2015) emphasised transparency et al, the collegium continued with its old policy of keeping its deliberations, as also communications with the Centre on the Memorandum of Procedure, a secret.

The system reportedly functions by the two top judges deciding the names of candidates to be elevated—no reasons or opinions are recorded—and asking the collegium to approve the same. Genuine objections against undesirable candidates are shot down. Hence, Justice Chelameswar has taken the stand that he would examine files referred to him, regarding judicial candidates, and record his views in writing. This will automatically force the collegium members to record their own views before passing on the files to him.

Justice Chelameswar was the sole dissenter at the time of the NJAC judgement, delivered by a five-Judge Constitution bench. Terming as unfortunate the quashing of the NJAC Act, passed unanimously by Parliament, he urged the judiciary to introspect if the collegium system has become “a euphemism for nepotism” where “mediocrity or even less” is promoted and a “constitutional disorder” does not look distant. He disagreed that judicial primacy in appointments of judges is a basic structure of the Constitution: “To wholly 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.” Not only does this have no parallel in any other democracy, it erodes the basic feature of checks and balances. Continue reading