Independence, impartiality and fearlessness of Judges are not the private
rights of the Judges but citizen's rights. Ultimately judicial legitimacy/ power
rests on people’s confidence in Courts. The New Year has ushered in key changes
in Hon'ble the Supreme Court of India with two new Judges joining it on January
18, 2019. The Chief Justice of Karnataka High Court, Dinesh Maheshwariand a
Judge of the Delhi High Court, Justice Sanjiv Khanna, were administered the Oath
of Office by Chief Justice of India Ranjan Gogoi in his Court despite a raging
controversy over the merits of the Collegiums’ recommendation to elevate them,
overlooking their lack of Seniority over other eligible Judges.
Justice Dinesh Maheshwari, Chief Justice of Karnataka High Court & Justice
Sanjiv Khanna ofDelhi High Courtwere on January 16, 2019 appointed as Judges
of Hon'ble the Supreme Court of India following Presidential approval. The
notification came six days after the Apex Court Collegium, headed by Chief
Justice of India Ranjan Gogoi, recommended their elevation. The Collegium’s
decision to elevate Justices Khanna & Maheshwari created quite an uproar as it
was different from the decision taken by the Collegium in December, 2018.
The Ministry of Law & Justice notified the appointment of Justice Maheshwari &
Justice Khanna, in exercise of the powers conferred by clause (2) of Article 124
of the Constitution of India, when Hon'ble the President of India approved the
Last year in December, 2018 the Collegium had recommended Chief Justice of
Rajasthan High Court Pradeep Nandrajog and Chief Justice of Delhi High Court
Rajendra Menon for elevation to the Apex Court. That Collegium changed after
Justice Madan Lokur retired on December 30, 2018 and Justice Arun Mishra was
inducted. However on 10th January, 2019, the new Collegium - after Justice Madan
Lokur had retired - held its first meeting and decided to elevate Chief Justice
of Karnataka High Court Dinesh Maheshwari & Delhi High Court Justice Sanjeev
Khanna to the top Court. "While recommending the names of Chief Justice Dinesh
Maheshwari & Justice Sanjiv Khanna, the Collegium has taken into consideration
combined seniority on all-India basis of Chief Justices & Senior Puisne Judges
of High Courts, apart from their merit and integrity," the Collegium said.
The decision met criticism from some sections of legal fraternity which argued
that the super session will be unfair to many Senior Judges including Chief
Justice Pradeep Nandrajog.
Justice Sanjay Kishan Kaul of Hon'ble the Supreme Court wrote a note to the
Chief Justice of India and other members of the Collegium -- Justices A. K.
Sikri, S. A. Bobde, N. V. Ramana & Arun Mishra - raised his reservations for
ignoring the Seniority of Justices Rajendra Menon and Pradeep Nandrajog.
Meanwhile, the move did not go down well with some of the former Justices who
expressed their displeasure and one of them has even written to Hon'ble the
President of India Ram Nath Kovind. A former Judge of Delhi High Court Kailash
Gambhir had written to Hon'ble the President Ram Nath Kovind saying the
Collegium’s resolution to elevate Justice Sanjiv Khanna was ‘appalling and
outrageous’ because an “earth-shattering decision has been taken to supersede as
many as 32 Judges, which include many Chief Justices, casting aspersions on
their intellect, merit and integrity.” Retired Judge, now a Senior Advocate,
urged Hon'ble the President of India that the credibility and independence of
the judiciary be preserved and "let another historical blunder not be
The Bar Council of India, which is an apex body of lawyers, said the decision of
the five-member Collegium headed by Chief Justice of India Ranjan Gogoi was
viewed by the Bar and the Common man as “unjust and improper”. BCI Chairman
Manan Kumar Mishra, in a statement, said the supersession of several senior
Judges and Chief Justices of the country cannot be tolerated by the people and
the revocation of the earlier decision recommending the names of Justices
Pradeep Nandrajog and Rajendra Menon is viewed as “whimsical and arbitrary”.
Justice Chelameswar, who retired last year in 2018, said that “this is exactly
why I refused to attend the Collegium meetings in 2016″. On the other hand,
former Delhi Chief Justice A. P. Shah said that this case shows that the
Collegium system continues to be opaque, secretive and unaccountable.
In the Second Judges case, the nine-judge bench of Hon'ble the Supreme Court of
India held in 1993: “Inter-se seniority amongst Judges in the High Court and
their combined seniority on all India basis is of admitted significance in the
matter of future prospects... It is, therefore, reasonable that this aspect is
kept in view and given due weight while making appointments from amongst High
Court Judges to the Supreme Court. Unless there be any strong cogent reason to
justify a departure, that order of seniority must be maintained between them
while making their appointment to the Supreme Court … this would also lend
greater credence to the process of appointment and would avoid any distortion in
the seniority between the appointees drawn even from the same High Court.”
Learnings from the past
Take the case of Justice A. N. Ray, who was appointed Chief Justice of India (CJI)
in 1973 superseding three Senior Judges, or Justice M. H. Beg, who was appointed
CJI superseding Justice H. R. Khanna in 1977.
In the Bank Nationalization case (1970), while as many as 10 Judges went against
the Government, Justice Ray approved the Government’s action. Similarly, Justice
Beg, in the Indira Gandhi's election case, held that while democracy is the
basic structure, free and fair election is not.
The National Judicial Appointments Commission (NJAC) was struck down by Hon'ble
the Supreme Court of India because it would have compromised the independence of
the Chief Justice of India and given a role to the Government in the appointment
of judges. Unlike in the U.S. where Judges are appointed by the President and
are known to be leaning towards the Democrats or Republicans, Indian Judges are
not supposed to have any political affiliation. But is it possible to completely
insulate Judges from Governmental influence? The answer is no - as George Orwell
pointed out in1984, the Government is everywhere, and Judges as fellow human
beings do get influenced by it. The Judiciary asserts its position only when the
Government is weak. This Collegium system was asserted when we had weak Central
Governments in the 1990s.
Power and influence
‘Power’ and ‘influence’ are fundamental concepts in society. ‘Influence’ is
sometimes considered to be an aspect of ‘power’. According to the American
sociologist, Alvin Ward Gouldner, the universal norm in human societies is that
individuals are obligated to reciprocate favours received. Gouldner articulated
the “norm of reciprocity” in the following manner: “people should help those who
have helped them” and “people should not injure those who have helped them”.
In his NJAC Judgment (2015), Justice J. S. Khehar discussed the issue of
reciprocity at length in striking down the National Judicial Appointments
Commission. He referred to Laura E. Little’s work on American Jjudges who felt
obliged to the President for nominating them and Senators who helped them in the
confirmation process. Justice J. S. Khehar, therefore, preferred exclusion of
the political executive from the appointment of Judges as a feeling of gratitude
towards the Government impacts the independence of the Judiciary. It was for
this very reason that even Dr. B. R. Ambedkar wanted to insulate the Judiciary
from political pressures.
In his autobiography, Roses in December, the former Chief Justice of the Bombay
High Court, M. C. Chagla, who also served as a Minister in Indira Gandhi’s
Cabinet, boldly stated the adverse impact of supersession when he said, “the
effect of these supersessions was most deleterious on the Judges of the Supreme
Court who were in the line of succession to the Chief Justiceship. Each eyed the
other with suspicion and tried to outdo him in proclaiming his loyalty to the
Government either in their judgments or even on public platforms.” A similar
depiction of the Apex Court was made by Justice H. R. Khanna, who himself was
superseded, in his book,Neither Roses Nor Thorns, when he recalled, “one of the
new trends was the change in the approach of the Court with a view to give tilt
in favour of upholding the orders of the Government. Under the cover of high
sounding words like social justice the Court passed orders, the effect of which
was to unsettle settled principles and dilute or undo the dicta laid down in the
Access to justice is basic to human rights and Directive Principles of State
Policy become ropes of sand, "teasing illusion and promise of unreality", unless
there is effective means for the common people to reach the court, seek remedy
and enjoy the fruits of law and justice. Undeniably, the most strategic office
in the overall scheme of governance of the country is the Judiciary. How Judges
are appointed, transferred and elevated, surely becomes a matter of national
concern. Forensic supremacy and operational independence emphasize the necessity
for making the selection of the 'robed brethren' a matter of transparency and
for some form of public opportunity to know and be heard. An old Roman adage
runs; "Whatever touches us all should be decided by all." Not in that extreme
elective form as in some States in United States of America but in a manner that
involves some participation, publicity and surrogacy, which brings into the
process of choice of Judges an element of democracy. The Collegium is a
constitutional conundrum which is the product of the Judiciary, not even
mentioned in out long Constitution, nor is it an institutional functionary.
Questions continue to be asked a year after that press conference whether the
current Chief Justice of India Ranjan Gogoi, who was part of that presser, has
taken the necessary steps to inspire the confidence of the public in the Court
and made it more transparent.
The recent appointments to Hon'ble Supreme Court of India are likely to add to
the misgivings about the functioning of the Collegium and the Apex Court.
Dinesh Singh Chauhan - Advocate
High Court of Judicature, J&K.