Justice Jasti Chelameshwar will go down in judicial history for being the lone judge to veto the concept that the Supreme Court collegium has a divine right to decide in secrecy who make good judges and who do not, when he boycotted its proceedings. He was denied the chance of becoming the chief justice of India (CJI) due to a mysterious delay in his elevation to the apex court and will now retire on June 22, 2018 as the seniormost judge of the apex court. In 2015, Justice Chelameshwar was the lone dissenting voice among the five judges who struck down the National Judicial Appointments Commission Act. He called the collegium system of appointing judges “a euphemism for nepotism” where “mediocrity or even less” is promoted and a “constitutional disorder” does not look distant. He was also on the bench which struck down the draconian Section 66A of the IT Act and stayed the Aadhaar scheme as violative of a citizen’s privacy.
For the collegium system of appointing judges to the 24 high courts and the apex court is a clique without any roots in the Constitution but formulated by judicial pronouncements in 1993 and 1998. Laws are made in full public view by Parliament with recordings available for posterity but judges who interpret those laws are appointed in secrecy without records of the collegium being maintained.
It is time to question why we should not follow the US system where video records are maintained of senators grilling incumbent judges of the Supreme Court before they are confirmed. Apparently, unlike docile Indians, the US senate does not believe in the divine right of judges to select themselves.
When a clique deliberates in secrecy without even a steno recording what is said, there are trade-offs within the conclave because a lawyer or judge may be unpalatable to a powerful CJI like Altamas Kabir whose sister was elevated to the Kolkata High Court when she was 59-year-old despite strong protests by Justice Bhaskar Bhattacharya who was overlooked for elevation to the Supreme Court because of his bluntness.
Outspoken judges like Justices Chelameshwar, Kurien Joseph and Bhaskar Bhattacharya may be seen as endangering “national security” by an ideologically-biased and corrupt executive. So, the least a patriotic Indian would expect is that deliberations of these collegiums should be recorded so there is no suspicion.
Judges of the 24 high courts and the Supreme Court take an oath to uphold the Constitution unlike their counterparts in the executive who are more loyal to their constituencies than the Constitution. But while judges are not accountable to the people for atrocious judgments, ministers can be voted out after five years for non-performance.
After confirmation, judges from the higher judiciary can never be removed without impeachment. This is why some judges stick to the letter of the law rather than its spirit which is why gangster MPs like Mohammad Shahabuddin are freed on bail after being sentenced to life imprisonment and actors like Salman Khan are acquitted for culpable homicide after allegedly putting up his driver to claim culpability. This sends a wrong message to the world that it is the glitterati like Salman Khan who are acquitted by the courts while the poor languish in jails for decades.Moreover, intellect, wisdom and honesty are vital for appointment to the higher judiciary so that high court and Supreme Court judges can decide courageously whether triple talaq overrides the Constitution or vice versa so that Muslim women are treated on par with their men. This is why judicial appointments need to be transparent.
The judges of the lower courts are appointed by a high court collegium consisting of the chief justice of that high court and two most senior judges which too has no Constitutional roots. It is this high court collegium which selects judges of the state judiciary after interviewing those who have passed the state judicial service examination. Some Mumbai magistrates selected by the Bombay high court collegium have proved to be corrupt with one being sacked after a few lakh rupees in cash was found inside his drawer.
Until the Indian SC accepts transparency, we will continue to have judges like two former chief justices of India K.G. Balakrishnan who was accused of corruption, and P. Sathasivam, who attended BJP strongman Amit Shah’s son’s wedding and was made Kerala governor and Justice Vijay Bahuguna who was forced to resign from the Bombay high court amidst corruption charges and later became the Uttarakhand chief minister. He gifted himself a palatial house when forced to quit for the second time for inept handling of flood relief in 2013.
