Suhrith Parthasarathy @suhrith
When, in October 2015, a five-judge bench of the Supreme Court struck down the 99th Constitutional Amendment, and with it the National Judicial Appointments Commission, the judgment was celebrated by many as a victory for the cause of judicial independence.
The prevailing system, which gives primacy to a collegium of Supreme Court judges in making decisions both on appointments to the higher and on transfers inter se high courts, the court had ruled, was a part of the Constitution’s basic structure, and could, therefore, never be disturbed.
But not only was this verdict palpably wrong, since then several decisions made on elevations and transfers of judges have proved that the collegium does little to enhance the independence of the judiciary. If anything, a good case can be made out to show that the body is, in fact, deeply detrimental to judicial autonomy. This is best exemplified, perhaps, by its recent and remarkable volte-face over the appointment of Justice Akil Kureshi as a chief justice of a high court.
On May 10, this year, the Collegium—comprising the Chief Justice of India Ranjan Gogoi, Justice SA Bobde, and Justice NV Raman — had recommended Justice Kureshi’s name for the post of chief justice of the Madhya Pradesh High Court.
By any account, Justice Kureshi is a judge of impeccable character and learning.
A Resolution Unresolved, Gets ‘Modified’
As the resolution published on the Supreme Court’s website noted, he was the senior-most judge from the Gujarat High Court and was at the time functioning, on transfer, as a judge of the Bombay High Court. This transfer, it’s worth bearing in mind, was also by itself far from uncontroversial. “Having regard to all relevant factors,” the resolution added, “the Collegium is of the considered view that Mr. Justice A.A. Kureshi is suitable in all respects for being appointed as Chief Justice of the Madhya Pradesh High Court.” [The emphasis here is mine].
Yet, weeks passed by, and the union government, even as it provided its seal of imprimatur to other nominations, simply postponed any consideration of the recommendation concerning Justice Kureshi. Ultimately, it took a writ petition brought before the Supreme Court by the Gujarat High Court Advocates Association, for the government to promise action. And when that action came, we now learn, the government expressed disagreement over the decision to recommend Justice Kureshi as chief justice of the MP High Court.
At this point, one would have thought, the Collegium would have persevered with its endorsement. Instead, in a resolution released on Sept. 20 (but curiously dated Sept. 5), it reneged on its original proposal. The initial recommendation, it noted, had been returned to the Chief Justice of India through two separate letters of Aug. 23 and Aug. 27, along with what it described as “accompanying material”. “On reconsideration,” the resolution added, the collegium had now resolved to “reiterate its earlier recommendation dated 10th May, 2019, with the modification that Mr. Justice A.A. Kureshi be appointed as Chief Justice of the Tripura High Court.”
On any reasonable reading, this is a bizarre and wholly unfortunate outcome. First, the collegium’s resolution cannot possibly be considered as a “reiteration.” After all, its initial recommendation pertained to an altogether different high court. Second, for the collegium to hold that “accompanying material” placed by the government constituted a valid ground for a change in its decision simply begs the question.
If Justice Kureshi were somehow unfit to be designated as the Chief Justice of the MP High Court, how could he then be considered an appropriate choice for the High Court of Tripura?
There’s little question that all high courts, whether chartered or otherwise, should be considered equal – they perform the same constitutionally designated role. But there’s also little question that the collegium doesn’t quite see it this way. It sees postings in certain high courts as something akin to a penal sanction. Nothing else can explain the euphemistic phrase, “in the interest of better administration of justice,” that it recently used to justify a transfer of a Chief Justice from one high court to another.
A Rewriting Of The Constitution
The Collegium considers itself to be essential to the cause of maintaining an independent judiciary. But that the Constitution’s framers never envisaged the composition of such a body doesn’t quite appear to bother it. Indeed, as the historian Granville Austin has pointed out, the Constituent Assembly spent more time deliberating how to establish an independent judiciary than over any other point of contention. It was cognisant of the fact that ensuring a proper separation of powers, while at the same time insulating the judiciary from all political influence, wasn’t going to be an easy task. It was with that end in mind that the framers installed a number of critical clauses in the Constitution—among other things, they ensured that the Constitution provided that salaries and allowances of of the judges were to be charged only from the Consolidated Fund of the State; that each of the high courts would have the power to punish for contempt of court; and, most notably, that judges of the Supreme Court and the high courts could only be removed, under any circumstance, through an onerous process of Parliamentary impeachment. Yet, when it came to defining the power to both appoint judges and transfer judges inter se high courts, the Assembly settled on what its chairperson BR Ambedkar described as a “middle course.”
The Constituent Assembly thought of the idea of involving Parliament in the process as cumbersome, while it believed that the grant of a veto to the Chief Justice of India was simply undemocratic.
It was therefore that it vested the power in the political executive, with the caveat that the President ought to act after compulsorily “consulting”, among others, the Chief Justice of India. But what should consulting mean? This question arose for the first time before the Supreme Court in Sankal Chand Himatlal Sheth’s case (1977). There, the court concluded that while “consultation” can never mean “concurrence”, the process nonetheless had to be “real, substantial and effective,” and “based on full and proper materials placed before the Chief Justice by the Government.” Should the government eventually choose to depart from the chief justice’s opinion, Justice VR Krishna Iyer added in his opinion, such a decision could be subject to the general rigours of judicial review. But, this judgment, as I’ve explained elsewhere, was overruled in time, and the Supreme Court virtually rewrote the Constitution to create the collegium system, through which primacy in decision-making was bestowed on the Chief Justice of India and his senior-most colleagues.
Opacity And Intrigue
Attempts to replace the collegium with the NJAC were struck down possibly because the court feared that the executive might use its authority to appoint pliant judges on the court. But when the court ensured the collegium’s retention it also promised to reform the system from within.
Nonetheless, although nearly four years have lapsed since its judgment, apart from now publishing its decisions online the Supreme Court and the Collegium have done nothing to promote transparency.
The old mystique remains in force with the publication of the minutes only adding to the sense of intrigue.
Ultimately, in a democracy, every institution must be accountable and subject to checks and balances. But the collegium’s secretive functioning means that we simply aren’t aware of what factors serve to balance its powers. The court itself seems to believe that this opacity is necessary and expedient.
But the independence of the judiciary, much like principles of natural justice, requires not only the existence, in fact, of autonomy but also an appearance of such autonomy. When the Collegium reneges on a decision based on purported materials supplied by the executive, the appearance of independence suffers a cruel blow.
Unless we think seriously about mending the prevailing system governing appointments and transfers of judges the very idea of an independent judiciary, which is today threatened, will wither away beyond redemption.
Suhrith Parthasarathy is an advocate practicing at the Madras High Court.-- Bloombergquint