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Analysis

Updated on: Friday, December 24, 2021, 08:42 AM IST

Will the new National Judicial Appointments Commission (NJAC) bill ensure greater transparency?, writes Olav Albuquerque

Supreme Court of India  |

Supreme Court of India |

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The dead National Judicial Appointments Commission (NJAC) Act, 2014, which was the product of the 99th Constitutional amendment, may resurface in a refurbished version because many retired judges, apart from the Supreme Court Bar Association and other public intellectuals, have opposed the judges appointing themselves in secrecy. The Modi government has already insisted on having a say in judicial appointments. If the Parliament passes a refurbished law spelling out how judges will be appointed, it will override the apex court verdict quashing the NJAC.

The Supreme Court had struck down both the NJAC Act and the 99th Constitutional amendment in 2015 on the grounds it tinkered with the basic structure of the Constitution by encroaching on judicial independence. Union Law Minister Kiren Rijiju openly declared in Parliament on December 8 that how judges were selected needed “wider consultations”. He said this while replying to a debate on the High Court and Supreme Court Judges (Salaries & Conditions of Service) Amendment Bill, 2021, which the Parliament passed unani ,ik mously. During the debate many MPs urged the government to bring another bill to revive the defunct NJAC by scrapping the collegium system. Perhaps an All India Judicial Service may be in the offing.

After demitting office, Justice Kurien Joseph regretted being part of the bench which struck down the 99th amendment with the sole dissenter being Justice Jasti Chelameshwar, whose son Jasti Naga Bhushan Chelameshwar has been appointed additional advocate general by the Y S Jaganmohan Reddy government in Andhra Pradesh this month. The former union law minister Ravi Shankar Prasad who resigned from the government in July had openly declared his ministry would not be a mere “post office” to only forward the names of putative judges to the President.

True to Prasad's words, the government blocked the elevation of the then chief justice of the Uttarakhand High Court K M Joseph, to the Supreme Court until an outspoken Justice Jasti Chelameshwar reiterated the collegium's resolution proposing Justice Joseph. This resolution had said, “he is more deserving and suitable in all respects than other chief justices and senior puisne judges of high courts for being appointed a judge of the Supreme Court of India.”

But leaving Justice Joseph aside, what makes this issue of judges appointing themselves in secrecy more contentious is that Ranjan Gogoi's autobiography titled “Justice for the Judge” alleging the CBI did not pursue an adverse report from the Intelligence Bureau (IB) about the then Madras High Court chief justice Vijaya Kapse Tahilramani.

Gogoi now has to face the ignominy of 10 breach of privilege motions against him for stating in a December 9 interview to NDTV: “I go to the Rajya Sabha when I feel like (sic), when I think there are matters of importance on which I should speak. I am a nominated member, not governed by any party whip. Therefore, whenever the bell rings for the party members to come, it does not bind me.”

Questioned about the propriety of accepting a Rajya Sabha nomination four months after demitting the highest judicial office in the country, Gogoi reportedly shot back: “What is the magic about Rajya Sabha? I would have been better off in terms of pay and emoluments if I had been chairman of a tribunal.” These statements irritated the MPs enough to lodge 10 breach of privilege complaints against him.

To revert to the former Madras chief justice Vijaya Kapse Tahilramani, when he was the CJI, Ranjan Gogoi ordered the CBI to take action as per law against this lady judge for dissolving a special bench hearing idol theft cases allegedly under pressure from a Tamil Nadu minister. She was accused of allegedly favouring certain advocates apart from buying two flats at Semmencherry in Chennai at a cost of Rs 1.56 crore from six bank accounts linked to her name. Gogoi claimed the CBI never pursued the matter despite an adverse report from the IB against Tahilramani.

Both the Chennai and Mumbai Bar Associations came out strongly in Justice Tahilramani's support when she was transferred from the prestigious Madras High Court to the tiny Meghalaya High Court as its chief justice. She chose to resign which precipitated the adverse IB report against her.

But why pick on this lady judge? Her seniors like Chief Justices J S Khehar, Dipak Misra, Ranjan Gogoi, and Sharad Bobde, have also been embroiled in controversies which prove they are human after all. Chief Justice Ajit Shah pointed out to Karan Thapar the 44th CJI J S Khehar's impropriety in converting a letter written by Dangwimsai Pul, widow of Arunachal Pradesh chief minister Kalikho Pul, to the senior apex court judges, into a writ petition without her consent.

Kalikho Pul committed suicide in 2016 alleging he had paid cash to the then finance minister Pranab Mukherjee who later became the President and also that agents had allegedly sought bribes on behalf of a few Supreme Court judges including Justice Khehar. His successor, the 45th CJI Dipak Misra, was accused of bench-fixing in India's firstever press conference called in 2018 by four of his brother judges who did not name him. Ranjan Gogoi, who was one of these four, created judicial history by being the first CJI to be accused of sexual harassment in post-independent India.

The four judges who called the press conference did a service to the nation because they could have retired quietly. They were true to their conscience which may also explain why the former CJI Sharad Bobde was reported to have visited the ancestral home of RSS chief Keshav Baliram Hedgewar at Nagpur on August 31 to see how it was being restored. And later the former CJI reportedly met the RSS leader Suresh Bhaiyajji Joshi. He felt there was nothing wrong as a former CJI to display he was a devout Hindu or his passion for heavy motorcycles which he rode. Each judge has a conscience which differs from his brother judges. This is why we may need a new law to make judicial appointments totally transparent.

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Published on: Friday, December 24, 2021, 08:42 AM IST
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