Observing that justice delivery system is “collapsing”, the Supreme Court had on August 12 sent out a stern message to the Centre over non-execution of collegium’s decision to transfer and appoint Chief Justices and judges in high Courts, saying it will not tolerate the “logjam” and would intervene to make it accountable. Under the current system, the collegium recommendations are final and binding on the government.
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The apex court’s agreeability to hear the petition comes at a time when Justice J. Chelameswar, Supreme Court judge and Collegium and lone dissenter of the October 16, 2015 NJAC judgment, wrote to the Chief Justice his decision to skip Collegium meetings till a transparent mechanism is ushered in.
Last October, Justice Chelameswar was the only judge to take a different view when a five-member bench struck down the National Judicial Appointments Commission Act that gave politicians a role in appointing judges.
The lawyers’ body has also written an “open letter of appreciation” to Justice Chelameswar about his principled stand against the opacity of the two-decade-old Collegium system.
Was it early for Justice Chelameswar to raise the issue at this moment when the top judiciary and the Modi government are locked in a tussle over the drafting of the memorandum of procedure for the appointment of judges to higher judiciary? TS Thakur, however, deferred the discussion pertaining to revised Memorandum of Procedure for appointment of judges.
He had said the assumption that “primacy of the judiciary” in the appointment of judges was a basic feature of the Constitution “is empirically flawed”.
A senior Law ministry official said that “while this is an internal matter of the judiciary, it also shows that the process of appointments need to change and be more transparent”.
Legal experts say that the statements by Justice Chelameswar will have an impact on the ongoing tussle between the Centre and the judiciary.
It seems likely that the three former CJIs – RM Lodha, KG Balakrishnan and P Sathasivam – who spoke, may not have an overwhelming interest in ensuring transparency. Any appointments made through the existing collegium system at a time when a new procedure for doing so is under active consideration will undermine the institution.
The collegium comprises CJI TS Thakur and Justices AR Dave, JS Khehar, Dipak Misra and Chelameswar.
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Ex-CJI Lodha is wrong to presume that the outside world does not need to know what is happening in the collegium, for the basics of transparency involve letting the real “people” know how judges were selected, for what reason, and why. But what is there to sort out barring the termination of the opaque collegium system and giving the executive some say in the appointment of judges?
