Whistle Blower in Supreme Court: Justice Chalameswar
New Delhi: For more than one year Justice Jasti Chelameswar is struggling to bring transparency into the functioning of collegium, the top most judges appointment body. Most unfortunate that his efforts did not bear fruits and the judge who questioned is continuing to question without any result. Frustrated, Justice Chelameswar started not attending the collegium meetings. It might spell a crisis in appointments of judges. But none bothered. Through RTI Act, the Parliament wanted utmost transparency in every appointment, promotion and transfer. In most of the judgments apex court said judges appointment process should be transparent. Whether Supreme Court is above this requirement?
The letter of Justice Chelameswar should have been a bomb exploring the possibility of transparency. But there was no blast, no splinters, no response, no reaction nor any effort to answer a senior judge who was not attending collegiums. It has many surprises for our citizens. Surprise no.1: The letter says it is futile to attend collegium meetings, because (Surprise no.2) minutes of all meetings are not taken down. Surprise, 3: judges do not give reasons for their decisions, and what Justice Chelameswar wanted was reasons. We the people are told by judges in several thousands of judgments that if ‘x’ is preferred ‘y’, it should be supported by reasons. Surprise 4: None responds to the letter of Justice Chelameswar. The great debaters on media do not debate this issue at all. The parliament does not bother. The law ministry perhaps thinks that it is totally the domain of apex court and the apex court appears to be silent. It is not known if there is any discussion inside the Supreme Court. Surprise 5: Of all, the Bar does not speak, as if the points raised are supposed to be debated in class rooms and moot courts.
Justice Chelameswar is the sole dissenting judge who objected to the majority decision striking down the National Judicial Appointments Commission. He gave enough reasons why the final say on judicial appointments should rest with the judiciary but there should be some say of the Government in the process. One judge strongly pleads for a say to the Government, and surprise 6 is the Government does not speak single word.
He gave another important ruling that the Government should revise the Memorandum of Practice to make the process of appointing the superior court judges. Surprise 7: Neither Government nor the Judiciary say anything on this. It is not known whether this process is stopped or shelved. The names are circulated, the collegium sends the papers to the members, some judges are appointed, some are transferred etc. but there is no move to make the process transparent. For some time the transfers and appointments were frozen.
The Supreme Court, in 2016, while hearing a PIL, had sent out a stern message to the government over non-execution of the collegium’s decision to transfer and appoint Chief Justices and judges in high courts. It had warned the Centre that the court would not tolerate “logjam in judges’ appointment” and would intervene to “fasten accountability” as the justice delivery system is “collapsing”.
Opaque and inaccessible
In a Constitutional bench’s order of Supreme Court, which had quashed the NJAC Act and the 99th constitutional amendment, dissenting Justice Chelameswar had said that the collegium system of judges’ appointment was “opaque and inaccessible” to the people at large and it needed “transparency”. This factor was in principle accepted by the other judges also. The Supreme Court judge had said that in the last 20 years, after the advent of collegium system, a number of recommendations made by the collegia of high courts were rejected by the collegium of the Supreme Court. 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.”
Who knows the law?
While hearing a case in August 2016 relating to punishment for those MBBS degrees were tainted by Vyapam scam, Justices Chelameswar and Sapre had found instances of undeserving candidates taking advantage of irregularities in entrance examinations to bag MBBS seats. Justice Chelameswar had said they should be asked to render charitable healthcare for a certain period to retain their MBBS degrees. But Justice Sapre had said these degrees should be cancelled.
The bench headed by Justice Khehar had then asked whether the matter needed to be heard afresh to resolve the conflict of opinion and sought an answer from Justices Chelameswar and Sapre. The Bench did not read out the judgment but signed it, which is a departure from the usual practice where judges read out the operative portion of the verdict. The Bench then explained: “We completely fail to understand the reference made to Article 145(5) of the Constitution in the July 28, 2016 order (of the three-judge bench headed by Justice Kehar, before he became CJI).” Article 145(5) provides that the court should not pronounce a judgment without the concurrence of a majority of the judges on the bench which heard the case. However, it also says this would not prevent a judge from delivering a dissent judgment or opinion. Justices Chelameswar and Sapre said, “We are of the opinion that neither the Constitution of India nor any other law of this country provides an intra-court appeal insofar as the Supreme Court is concerned. A rehearing of the entire matter as apparently suggested by the larger bench, in our opinion, would amount to an intra-court appeal.” As a message to the three-judge bench of Justice Kehar, the two-judge bench of Justices Chelameswar and Sapre said, “If the larger bench of this court wishes to create an intra-court appeal, we obviously are powerless to stop it. We can only record our understanding of the law on the question and it is as recorded above.” This is Surprise 8 question is “who knows the law?”
At one point of time the legal circles were hoping that there has been a rethink and for public good and in public interest, justice Chelamaswar may participate in SC collegium meetings. Public good demands finalization of MoP for appointment of judges from the collegiums with all its members together.
Since he opted out of collegium meetings, the Supreme Court was forwarding the minutes of these meetings to him. That is how Justice Chelameswar made the collegiums to record the minutes. He recorded his dissent over the non-elevation of KM Joseph, chief justice of the Uttarakhand High Court, and Manjula Chellur, chief justice of the Bombay High Court, to the apex court.
The Supreme Court collegium has forwarded the MoP to the government for mutual consultation and final approval. On March 10, collegium members had approved the MoP. These are guidelines to be formulated, in consultation with the government, for the appointment of judges to the high courts and the Supreme Court. Newspapers reported that the collegium has proposed income criteria for advocates to be considered for appointment as high court judges.
Media reported that it was told by a known person: “Advocates need to have a minimum income of Rs 10 lakh per annum, in the last three years, to be eligible to be appointed as high court judges.” It was also reported that during the meetings held to finalise the MoP, some of the collegium members suggested initiating strict action against judges, including impeachment, in cases of misconduct or conflicts of interest with relatives practising at the bar, rather than merely transferring them out on administrative grounds. The collegium must have deliberated upon the transfer policy for high court judges on grounds of public interest or conflict of interest in the case of judges, whose children practice in the same court. The MoP should address the possibility of bringing out a uniform policy of transfer of Judges. Final draft of MoP is yet to be emerged with official approval. The legal circles hope the MoP will take into account the suggestions of Justice Chelameswar. But surprise 9 is none bothers about finalization of MoP.
Crisis in collegium
A legal columnist in his article recently apprehended that crisis was looming large over the collegium, with a senior judge Chelameswar saying informal, coffee table meetings were passed off as collegium meetings. The report quotes a letter said to have written by Justice Chelameswar pointing out how collegiums were selecting judges on personal requests of participants, and how successive CJIs had “treated members of the collegium as supplicants”. If it is happening it is surprise 10.
The report deals with very significant issues. It says: “Justice Chelameswar agreed with the collegium’s decision to recommend names of Justices Sanjay Kishan Kaul, Dipak Gupta, MM Shantanagoudar, S Abdul Nazeer and Navin Sinha for appointment as SC judges. Then an informal meeting at a judge’s residence was allegedly called to fix norms and principles on which collegium meetings were to be held. But the ‘informal meeting’ soon transformed into a collegium meeting itself. When the CJI circulated the minutes of this ‘informal meeting’ as the decision of the collegium, Justice Chelameswar refused to agree. In return, the CJI threatened to bypass him and expand the collegium to continue the process of selection of judges.
There was letter from Justice Khehar, which alleged that at a meeting held on February 1, at “Justice Chelameswar’s asking “a particular judge who was proposed to be posted as the chief justice of Telangana and Andhra Pradesh HC was shifted to Chhattisgarh HC “as per Justice Chelameswar’s desire” and some other judge was accepted to be posted in the said HC.
To this the response of Justice Chelameswar on February 2 was: “It is the law of this land that no meeting can be convened without a proper notice and an agenda, be it a meeting of a panchayat board or a cooperative society or a company or other bodies, statutory or constitutional. If you (Justice Khehar) believed these collegium meetings are beyond all principles of law propounded by their court, God save this country….If these discussions across the coffee table are to be treated by you as meetings of collegium where important decisions in discharge of the obligations arising from the Constitution are to be taken, I feel sad for this country. But I am of the view that such a procedure falls short of the legal requirements of a meeting. I believe collegium meetings are too solemn events to be conducted so casually.” Surprise 11: We need to find out the difference between the coffee meeting discussions and collegiums meetings.
He further wrote in his 12 page letter: “the ex-CJI’s letter showed that members of the collegium are not participants in the decision making process but supplicants” making requests to the Chief Justice. “With great respect, I must tell you that it is not so. The judgment in the second judges’ case is the law declared by this court even today. It obliges the CJI to consult his collegium, either two or four, as the case may be depending upon the purpose of the consultation. Each participant is entitled to make suggestion and objection to the proposals. It is only after an appropriate discussion any final decision could be taken — not on personal requests of members of collegium and grace of the CJI…..It is this understanding of the successive CJIs that the puisne judges (senior-most judges) who are members of the collegium (for that matter even others) are lesser mortals which creates all those problems which we are going through. Chief Justice is nothing more than first among equals. The other consulate judges whether they are members of the collegium or beyond the collegium are equal participants in the decision making process, entitled to make suggestions and ask for information.”
Justice Chelameswar read a veiled threat to remove him from the collegium and said: “CJI was constitutionally not empowered to do so. I do not have to cite any authority for that. The second judges’ case not only obliges the CJI to consult the members of the collegium, it also obliges the CJI to consult in certain circumstances those judges of this court who are outside the collegium but well versed with the affairs of a particular HC as and when any decision regarding that HC is to be taken.”
There was also a proposal to expand the collegium, to which Justice Chelaeswar reminded Justice Khehar, his own decision in NJAC case, saying: “Membership of the collegium is fixed by a constitution bench of nine judges of this court and clarified by the third judges’ case. I am astounded to know that the CJI believes that such a position could be altered by a mere administrative decision. Such an authority was denied even to Parliament by the judgment of this court in NJAC case (a five-judge bench headed by Justice Khehar had by majority struck down NJAC).” Justice Chelameswar finaly said: “If any recommendation was forwarded by the collegium without his comments on it and if the government acted on such recommendations “they would be utterly unconstitutional.”
The mega-surprise (Surprise 12) is that top member of collegiums gets unconstitutional threats. If a constitutional officer holder spells out such threats, people look to Constitutional Courts for a constitutionally compliant judicial declaration. If the protectors of Constitution forget the norms of their own “law and order”s, what will happen to the apex institution that has to protect the Constitution?