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Need for transparency: Why Justice Chelameswar won't attend SC collegium

Catch Team | Updated on: 7 February 2017, 1:21 IST

A sitting judge of the Supreme Court, Justice Jasti Chelameswar, raised a revolt last week by refusing to participate in the meetings of the collegium headed by the Chief Justice of India, TS Thakur. The other members of the collegium are Justices Anil R Dave, JS Khehar and Dipak Misra.

The collegium is responsible for making recommendations for appointment of judges to the high courts and the Supreme Court, as well as for transfers.

Justice Chelameswar has revolted on the grounds that there is no point in attending the collegiums meetings as long as its deliberations are kept under wraps. His three-page letter to the CJI on 1 September (which was not released) has exposed the opaque collegium system, which was upheld by a five-judge Constitution Bench in October 2015 when it quashed the National Judicial Appointments Commission (NJAC) law.

Justice Chelameswar was the lone dissenter in the NJAC judgement by the Constitution Bench last year

The five-judge bench however, emphasised on transparency in deliberations within the collegium and selection process.

According to Justice Chelameswar, the present collegium lacks transparency by keeping its deliberations and communications with the Centre on the Memorandum of Procedure (MoP) secret, and acting contrary to last October's verdict.

The judge, who objected to some recent transfers, expressed his unwillingness to attend the meetings as no record of the discussion between the five judges in the collegium was maintained. He is understood to have said he saw no purpose in attending the meeting, and suggested the collegium's agenda be circulated to members. He also turned down the CJI's request to take back the letter, sources said.

This is the first time in the history of the Indian judiciary that a senior judge of the Supreme Court has decided to boycott the collegium meetings, seeking more transparency in the deliberations. Justice Chelameswar, who is due to retire in 2018, was the lone dissenter in the NJAC judgment. He not only upheld the NJAC law, passed by Parliament, but found the collegium system of appointments lacking in transparency and effectiveness.

What is the collegium system?

The collegium system was introduced by the apex court in 1993, when it laid down the parameters for judges' selection. On the basis of this judgement, the Centre came out with the MoP for judicial appointments.

But since there are inordinate delays in finalising the MoP, the process of filling the vacancies is likely to be delayed too. There are more than 400 vacancies in the high courts, which have a sanctioned strength of 1,016 judges. So, most high courts are working at 50% strength.

Executive vs judiciary

The government wanted to introduce a clause where the judges would be appointed/elevated to the Supreme Court on the basis of 'merit-cum-seniority' as the sole criterion, rather than 'seniority-cum-merit'. The Central government also wanted retired judges to be involved in the appointment process.

This, however, was not acceptable to the collegium as it would mean that a senior judge, who may not be the chief justice of a high court, could also be considered for elevation to the Supreme Court. This would also mean that a junior judge in a high court could also supersede a senior judge to become the chief justice of the high court.

The government also wanted to have veto power in appointments, viz to reserve its right to reject any candidate recommended for appointment as a judge on grounds of 'national security'. Under the earlier MoP, the Centre had the right to return a name back to the collegium for reconsidering its recommendation. But if the collegium reiterated the recommendation, the Centre would be bound to accept it. In the revised MoP, the Centre said it could reject any name on grounds of national security.

While refusing to accept this controversial cause, the Supreme Court expressed reservations and turned down the proposal, which would have given the executive absolute say on any appointment.

Further, the government's insistence on a rule that the collegium ought to provide reasons for rejecting a candidate for appointment as a judge was not acceptable to the collegium. While the collegium felt that such a rule would mar the future prospects of a candidate for being considered as a judge, the government found that it would ensure transparency and help to evaluate the claims of a candidate in any future appointment.

The government also wanted the collegium to share any dissenting note made by a member of collegium against any candidate with the government. The collegium, however, felt that since all decisions are invariably taken on a unanimous basis, the question of sharing dissenting opinion did not arise.

In sync with Centre's stand

Justice Chelameswar's opposition is in sync with the Centre's stand, highly placed sources told this writer.

His letter comes at a time when the government and the judiciary are at loggerheads over the new MoP. CJI Thakur has publicly criticised the government for not clearing fresh appointments and transfers of over 200 judges, despite an assurance that vacancies would be filled up pending finalisation of the MoP.

His refusal to attend the collegium's meeting only underscores his intense displeasure with its style of functioning, which is inconsistent with the NJAC bench's judgement.

Justice Chelameswar is now unlikely to participate in future collegium meetings, unless his demands are met.

By not attending the collegium meeting, he will go down in the Supreme Court's history as a crusader for transparency. Whether his fight bear fruits or not remains to be seen.

Edited by Shreyas Sharma

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First published: 6 September 2016, 2:39 IST