Hollowing Out of Judiciary

Another year, another tumultuous January for the Supreme Court. If 2018 saw a near mutiny by four senior judges of the Court against the then Chief Justice of ­India (CJI), 2019 has found one of those four judges, Justice Ranjan Gogoi, in the eye of many a storm as the current CJI. Three recent controversies have not only damaged his credibility and reputation, but have also reflected very poorly on the institution of the judiciary.

First, was the controversy over the involvement of Justice A K Sikri in the high powered committee (HSC) which suspended Central Bureau of Investigation Director Alok Verma by a majority of 2–1, with Sikri agreeing with the government represented by the Prime Minister. Even assuming that Sikri’s ­decision was entirely uninfluenced by the government’s proposal to nominate him to the Commonwealth Secretariat Arbitral Tribunal, it still goes against the principle that the judiciary is fond of repeating: Justice must not only be done, but seen to be done. The purpose of involving the CJI (or his nominee) in the HPC was to inject a level of neutrality and impartiality in the process. It may sound unreasonable, but, by leaving open even a small window for questioning the neutrality and impartiality of the judge in question, Gogoi’s decision has seriously damaged the credibility of the judiciary.

Immediately after this came the controversial decision to “reconsider” the nominations of Justices Rajendra Menon and Pradeep Nandrajog, which has left even the most ardent supporters of the system lost for words to defend it. The resolution nominating Justices Sanjiv Khanna and Dinesh Maheshwari is thin on the details as to the reasons for the reconsideration. Even the justification offered—that the collegium was reconstituted and fresh consultations need to take place—does not hold water. This has left the field open to speculation of all sorts, leaving no one any wiser as to why the collegium abruptly changed its mind within a month.

Every failure of the collegium has been exposed in this decision. No criteria have been set out by the collegium as to why Khanna and Maheshwari have been elevated, apart from a bland statement that alludes to their “merit.” No reasons are given for rejecting Menon and Nandrajog. The initial resolution recommending Menon and Nandrajog was not uploaded. The specific inputs that prompted the reconsideration are not mentioned anywhere. After concerns were raised by a current judge of the Supreme Court, multiple retired judges, lawyers, and citizens, not a word was heard from the Court or the CJI in response.

All that this process has done is confirm that the appointment process remains riddled with arbitrariness, opacity, and an ­absence of accountability. Almost exactly the same complaints were levelled by the four judges against then CJI Dipak Misra in the press conference on 12 January 2018, though in a slightly different context.

The elevation of Khanna and Maheshwari is not the only controversy that has hit the collegium and the appointment process in January 2019. In the week after this controversial elevation, a rush of decisions concerning the elevation of judges to various high courts raised more questions about the independence of the collegium. A bulk of these were decisions that the Ministry of Law and Justice asked the collegium to reconsider, sometimes on more than one occasion. Far from adhering to the memorandum of Procedure and sending the names back for appointment or offering compelling reasons as to why they have reconsidered, the collegium blandly accepts the centre’s reasons to reject 10 of the 11 names for appointment.

The actions of the Gogoi-led collegium make a mockery of the Supreme Court’s repeated judicial justification of the collegium system of appointment: that it is the best and only way to ensure the independence of judges in the appointment process. In the Fourth Judges Case (2015), while setting aside the constitutional amendment creating the National Judicial Appointments Commission, a majority of judges took pains to point out how much the independence of the judiciary was guaranteed by the collegium system of appointments. Reading Justice Madan Lokur’s concurring opinion, one even gets the sense that the collegium system is the only constitutionally permissible method of appointment of judges, and all the changes needed are minor and ancillary. If the controversies over appointments and transfers of judges in the last two years did not already do it, certainly the Gogoi-led collegium has destroyed any remaining justification for continuing with the collegium system.

Faced with intense public scrutiny and government pressure, the judiciary’s institutional weaknesses are being laid bare. These are not simply the moral failings of one individual or the consequences of the misjudgment of a few. It is another illustration of the institution’s inability to accept its internal infirmities. An additional source of disappointment on this occasion is perhaps that the institution is now being led by a person who seemed to be aware of such internal infirmities and had pledged to remedy them.

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