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Weighed in the balance

Author: Fali S Nariman
Publication: Hindustan Times
Date: May 9, 2013
URL: http://www.hindustantimes.com/News-Feed/Columns/Weighed-in-the-balance/Article1-1057629.aspx

Ever since the collegium system of appointing judges of the higher judiciary introduced in 1993 — not by law, but by a judicial verdict — the Bar has been a constant critic: principally because the collegium system had thus far lacked transparency. But recent revelations of the proceedings of the collegium (Hindustan Times, March 17 and April 12) — and not so far controverted by anyone in the authority — have put paid to this criticism. We now have in the public domain a wealth of detail and a super-abundance of transparency about recent appointments of judges — not a bad thing I would say. But the downside is that the people’s abiding faith in the administration of justice in India has taken a hard knock. Let me explain.

The recently-published recommendations of the collegium of five senior most judges of the Supreme Court had included comments about advocates considered not fit to be appointed judges of the high court of Delhi. Also included were adverse remarks about three named chief justices of high courts: as to why they had not been recommended for “elevation” to the country’s highest court; none of them had petitioned that they should be appointed as judges of the Supreme Court. And yet they have suffered a loss of face and reputation. About them the Chief Justice of India had reportedly written (to the appointing authority) that: “these three chief justices (of the high courts of Bombay, Gujarat and Uttarakhand) are not suitable to hold the office of Supreme Court judge and their elevation as such would prove to be counter-productive and not conducive to the administration of justice.”

Were these remarks necessary? Strictly speaking, they were. In the Second Judges’ Case (1993), it had been stated that there had to be “strong cogent reason” to justify departure from the inter se order of seniority amongst high court judges — when the collegium recommended appointments for the Supreme Court. But, were such remarks justified? According to practising members of the Bar in the three high courts, and some members of the Supreme Court Bar — they were not.

After all, the names of these very three high court chief justices had been considered not so long ago — by the collegium itself — when each of them were found fit and suitable to be raised from high court judge to chief justice of the high court (where the retirement age is 62); it is difficult then to understand how or why their further elevation to the position of Supreme Court judge (where the retirement age is 65) would prove to be “counter-productive and not conducive to the administration of justice”. Former chief justice of India VN Khare perceptively remarked: “it is unprecedented if this has been done... My experience has been that reasons for elevation or otherwise are not communicated in writing.” He suggests that it would have been enough to say that in the unanimous opinion of the members of the collegium the names of particular persons recommended for appointment to the Supreme Court of India were the best, and most appropriate — even after carefully considering the inter se seniority amongst high court chief justices; stating anything more was needlessly hurtful to the three named high court chief justices and should have been avoided.

The fallout of all this is that the collectivity of the bars in the three states of Gujarat, Bombay and Uttarakhand have backed their respective sitting chief justices — the Gujarat Bar having done so with a formal resolution. Way back in 1977, under the old system of appointment, when Justice Dhirubhai Desai, fourth senior judge in the Gujarat High Court, was chosen to be appointed to the Supreme Court of India over the heads of then Gujarat Chief Justice BJ Divan, and the two next senior judges, it was accepted — but not without protest. Members of the Gujarat Bar who had protested called on each of the three judges who had been “overlooked” and expressed renewed confidence in their ability to do complete justice. It is often said — and rightly said — that members of the Bar, though critical of some of its sitting judges and of their judgments, are (at all times) the best judge of the justices before whom they appear.

The revelations in the Hindustan Times (March 17 and April 12) show quite clearly that if the collegium is required to state not only its preference, as to who should be appointed but also give detailed reasons why judges more senior to those chosen have not been recommended, then it is far better that the present judge-imposed system of judges-choosing-judges be entirely scrapped — in the much larger interest of the administration of justice in the country.

In one of the Hindustan Times reports of the proceedings of the collegium, the last sentence reads: “the collegium’s terse decision comes when the government is in the process of changing the procedure for appointing judges of the Supreme Court and high courts.” I would say — the sooner this is done the better. This is because the climate of the times is no longer conducive to judges (howsoever superior) recommending to the government the names of high court judges for appointment in the higher judiciary; it has led to much heart-burning amongst the judges ‘overlooked’, giving rise to idle rumours about ‘settling of scores’, (and the like): all of which ultimately undermines confidence of the litigating public in the highest judiciary. And maintaining public confidence in the higher judiciary in these fractious times is a top priority. The collegium-system of appointing judges to the higher judiciary must go — in the way it came — by judicial diktat.

Fali S Nariman is a distinguished constitutional jurist

The views expressed by the author are personal
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