The facts highlighted by Justice J Chelameswar, in his
letter addressed to the Chief Justice of India, need very serious and immediate
consideration because of a growing fear all around that a big tussle is going
on between the Executive and the Judiciary. Appointment of judges to the High
Courts and the Supreme Court cannot be reduced to a mechanism of utmost
secrecy, known only to four or five persons in the country who are supposed to
be members of a Collegium of a small dimension. This is the time for a dialogue
between the Executive and the Supreme Court as to the manner in which the
Collegium should be further strengthened.
It is high time for the government to consider whether
another reference can be made to the court for consideration of the whole
matter by a still larger Bench. The new reference proposed here may be
considered by a Bench of 11 or 13 judges. I understand that there are many
Supreme Court judges, past and present, holding the view that the majority
decision in the NJAC case was wrong. The Supreme Court must be given an
opportunity for considering whether a re-evaluation is necessary.
I hold the view that
the facts highlighted by Justice J Chelameswar, in his letter addressed to the
Chief Justice of India, need very serious and immediate consideration because
of a growing fear all around that a big tussle is going on between the
Executive and the Judiciary at a time when the latter is insisting on keeping
certain powers with itself. Appointment of judges to the High Courts and the
Supreme Court cannot be reduced to a mechanism of utmost secrecy, known only to
four or five persons in the country who are supposed to be members of a
collegium of a small dimension. Judges are appointed to judge the causes of
justice, which can very often include the cause of great public importance.
Persons selected must be the best available and hence, accountability is a must
for all decisions concerning public issues. Transparency is the road to
accountability. If there is no transparency in decision-making process,
accountability will be lost.
When the collegium mechanism was evolved, and later expanded
in The Third Judges Case, I learned that transparency was given great
importance. Transparency does not mean that every step should be brought to
public notice. Transparency involves subjectivity. In other words, reasons are
important, such as why a certain person is selected to the exclusion of others
or why a certain person, otherwise eligible, was either not considered or was
rejected. The reason shall not ever remain only in the minds of the men at the
smallest dimension in the highest tier. It must be on record to be verified in
future.
All the aspects and reasons should be communicated to the
government. One must remember that it is the government or the Cabinet, which
under the Constitution, is to advice the President of India for making the
appointments of judges. So, the Union of India must know all the reasons
concerning everything that transpires in the matter of final selection of
judges, from the beginning till the selection point. The real authority being
the Council of Ministers headed by the PM to advice the President, it must be
on record. The participatory role of any kind for the civil society and
executive was totally excluded when the five-judge bench of the Supreme Court
struck down the National Judicial Appointments Commission Act by a majority.
The decision-making process cannot be shrouded in utter
secrecy and not traceable in future by anyone, whether the Executive, Judiciary
or other Constitutional functionaries. If there is want of any record, then
transparency and accountability will stand buried as far as appointment of
judges is concerned. Secrecy may be needed in military strategy or scientific
discoveries. Secrecy is not necessary in the appointment of judges at all. That
does not mean that there should be any public hearing for making the decision.
Non-transparency is the antithesis of democracy and rule of law. I have a
further point to say. Now, this is the time of a dialogue between the Executive
and the Supreme Court of India as to the manner in which the collegium should
be further strengthened. Now the selection is confined to the Supreme Court
only from among the Chief justices of different High Courts. A person could
become a Chief Justice of a High Court not on the basis of merit. It is
entirely depending on the date of the initial appointment, by which one can
become the senior-most judge and the Chief Justice. Merely because of a
person’s appointment on a particular date and eventually becoming a Chief
Justice, his eligibility to be raised to the Supreme Court could not be a
qualification. Many worthy candidates among the senior-most High Court judges
could not reach the Supreme Court due to this. Therefore, the collegium must
consider the best out of a zone, which prima facie, I may say that the
senior-most five persons of a High Court can be included in this zone of
consideration. Selecting the best out of the five would be the most advisable
course. Having been a judge of the Apex Court and a member of the collegium, I
know the significance, importance and the role they have to play in national
interest, for the development and unfurling of law. So you must have the best
available talents from all points of view. This cannot be done if they confine
the selection only to the Chief Justices of various High Courts.
I have a further point to highlight. The collegium is the
creation of judicial exercises. Even the word collegium was not mentioned in
the deliberations at the time of making the Constitution. It came out much
later considering the vast experience gained in the meanwhile. And it is in the
Second Judges Case, which created the collegium. The Third Judges case expanded
the collegium, with certain parameters in 1998. Now, a long period has elapsed.
We have experienced or learned so many things — the plus and minus points of
the collegium system. The Third Judges case was created, on account of a
reference made by the President of India to the Supreme Court. It is on that
reference a nine-judge bench was constituted by the then Chief Justice for
deciding if there are any grey areas in the Second Judges Case and in what
manner they must be corrected or clarified. Now, it is high time for the
government to consider whether another reference can be made to the apex court
for consideration of the whole matter by a still larger bench. The strength of
the bench, which considered the Third Judges case, was nine. The new reference
proposed here may be considered by a bench of 11-13. When a Constitutional
provision is struck down or questioned on the basis of the ratio in Kesavananda
Bharathi case, then five judges are insufficient to decide whether that basic
feature question will affect the Constitutional Provision. It is different from
considering a Statutory Provision.
It is the Constitution itself, which is being considered and
tested against what the judges themselves created through the Kesavananda
Bharathi case, namely the basic feature of the Constitution. Hence, any
challenge of Constitutional provision such as the one raised in the Kesavananda
Bharathi case should be decided by a bench of at least as large as that of the
Kesavananda Bharathi case. It is easily possible without amending the
Constitution to create such a bench, because the strength of the bench can be
decided by the Chief Justice. For this purpose, the relevant rule of the SC can
be amended. I understand there are many Supreme Court judges, past and present,
holding the view that the majority decision in the NJAC case was wrong. The
court must be given an opportunity for considering if a re-evaluation is
necessary, including whether evolvement of a new mechanism is needed for the
appointment of judges of the higher courts, being very important for the public
and the Constitutional functioning.
By Justice K T Thomas, former judge of the Supreme Court
Courtesy: The New Indian Express
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