With Justice Kurian regretting his collegium-support, the anti-NJAC ruling could have been 3:2 instead of 4:1 and that could have persuaded a third judge to come around—a case of repent at leisure.
Not surprisingly, given how the sexual harassment charges against CJI Ranjan Gogoi were handled, to the allegations of intimidation of the complainant, the pendulum seems to be swinging away from the untrammeled power of the collegium, and towards the more consultative process envisaged by the National Judicial Appointments Commission (NJAC) Bill that the Supreme Court contemptuously struck down in 2015. Indeed, the power of the collegium has been abused so often, and for so long, the disillusionment set in quite some time ago.
The collegium taking over the appointment/transfer of judges from the government began with the First Judges case and got further consolidated in the Second Judges case in 1993. In 2009, Fali Nariman, who was one of those who won the Second Judges case, said he regretted winning the case since the collegium hadn’t really lived up to expectations. And CJI JS Verma, the author of the main judgment also regretted this, arguing that what he had envisaged was not primacy of the judiciary in appointments/transfers, but a more effective government consultation with the CJI instead of just a token one.
The latest to say I-regret-the-collegium is Justice Kurian Joseph who was one of the four judges who rejected the NJAC; only Justice J Chelameswar, who stopped attending collegium meetings as they were opaque/arbitrary , voted for NJAC. So, what was a 4:1 defeat could have become 3:2 if Justice Joseph had felt this way a few years ago, and who is to say this wouldn’t have swayed another judge to make it a 3:2 NJAC victory? At a Vidhi Legal book-launch, Justice Joseph said that he was expressing his regret considerably faster — in under four years — than CJI Verma; while he was once optimistic about the collegium, he said, it had only got worse. Indeed, even as he agreed with Justice Lokur on how separation of powers in the NJAC judgment—between government and judiciary—“is the tectonic structure of the Constitution”, Justice Kurian had ruled “the present Collegium …lacks transparency, accountability and objectivity..The trust-deficit has affected the credibility of the Collegium … very serious allegations and many a time not unfounded too, have been raised”. In 2015, his judgment spoke of blatant violations, bad appointments, dictatorial attitude of the collegium, etc, but at that point, he felt, “to me, it is a curable situation yet”.
Ironically, such is the CJI’s complete power, much of what Justice Gogoi accused then CJI Dipak Misra of doing—in that famous press conference along with three other judges—such as presiding over benches where he had a self-interest, were things he repeated as CJI; he presided over the first bench that discussed the sexual harassment allegations, and even said this was part of a larger conspiracy to hobble him.
While the four judges raised the issue of judicial corruption—including allocating cases to certain benches— with then CJI Misra, they also spoke of Justice CS Karnan who gave a list of 20 corrupt sitting/retired Supreme Court and high court judges. While the letter of the four judges spoke of the need to “revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment”, no action was taken under CJI Gogoi. Indeed, even after the bribery charge against Justice Nirmal Yadav of the Punjab and Haryana High Court, she was only transferred to another court and her case is still pending after a decade; there has been no proper investigation of the charges made against judges—including the then CJI—by former Arunachal Pradesh chief minister Kalikho Pul in his suicide note. Some of this falls under the Judicial Standards and Accountability Bill that was brought into Parliament in 2010—it was to have a National Judicial Oversight Committee, a Complaints Scrutiny Panel and an Investigation Committee—but it got scuttled.
While collegium-supporters feel judicial independence is part of the Constitution’s basic structure, and that consultation with the CJI means concurrence — which is how the CJI has the last word — Justice Chelameswar said this was not the case in countries like the US and the UK; in the US, the president appoints judges with the advice and consent of the Senate. And while the proximate cause for the collegium was the government riding rough-shod over the judiciary, Justice Chelameswar pointed out that the transfer of 16 high court judges by the President in 1976 was done in consultation with the CJI. He records how “of 53 appointments of Judges to some High Courts made in 1984-85, 32 were made on the recommendations of acting Chief Justices …it is believed that the senior most Judges of some High Courts (from where the said 32 recommendations had originated) who initiated those recommendations as acting Chief Justices, were made permanent Chief Justices only after they agreed to recommend names suggested by the Executive”.
And, on the issue of the independence of the judiciary being part of the basic structure of the Constitution, Justice Chelameswar quotes BR Ambedkar as saying, “it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day” and that “to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision”. And yet, Ambedkar says, “to allow the Chief Justice 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 that is also a dangerous proposition”.
The current crisis in the SC will blow over, especially if the judges close ranks, as they did after CJI Misra retired. But till there is untrammeled power for the Collegium and the CJI and there is no independent mechanism to investigate/sack corrupt judges, the crisis will keep reappearing. The latest cases—three of them within the space of a few months—where SC orders were changed by lower functionaries are yet another symptom of this.