The Supreme Court has serious questions to answer on its own vacancies

The Modi government’s abortive attempt to take away the judiciary’s primacy in selecting judges has had a collateral damage in the form of mounting vacancies. For the 500 vacancies that have piled up in high courts, the government has been rightly blamed for dragging its feet, as a retaliation for the Supreme Court’s quashing of the National Judicial Appointments Commission. But for the seven vacancies that have accrued in the Supreme Court, the five-judge collegium, headed by Chief Justice of India TS Thakur, is itself responsible for the delay in filling them. The collegium is yet to recommend names for the vacancies that constitute almost a quarter of the Supreme Court’s sanctioned strength. Since his tenure is ending in barely a month, Thakur is reported to have now left it to his successor, Justice JS Khehar, to perform this urgent duty.

To be sure, this omission is not due to any lack of effort on Thakur’s part. He threw up his hands only after he had held as many as five collegium meetings in the last two months. The issue of the Supreme Court vacancies figured at the top of the agenda drawn up for each of those meetings. The collegium was, in fact, due to take a call on the seven names proposed by Thakur for the first time on October 8 through letters to the other four members. His failure to push through his nominees, whether unanimously or by a majority, has exposed dissensions serious enough to paralyse the collegium.

The latest crisis follows the embarrassment caused three months ago by one of the collegium members, Justice J Chelameswar, who declared that he would boycott its meetings as it did not observe the basic protocol of maintaining the minutes of the proceedings. In keeping with the more transparent option he had carved out for himself in the circumstances, Chelameswar gave his response in writing on October 10 to each of the seven names proposed by Thakur.

Thus, despite his physical absence, the collegium was legally in a position to finalise the names when it met subsequently on October 18. As it could not however finalise the names on that day, the collegium met four more times, in quick succession: on October 25, November 16, November 22 and November 30. Amid the flurry of those meetings, one of the collegium members, Justice AR Dave, retired on November 19. In the two meetings held thereafter, the participation of the new member, Justice Ranjan Gogoi, did little to break the deadlock in the collegium.

Secretive system

Thakur could perhaps have averted this setback had he taken the necessary corrective action at least after Chelameswar had disrupted the collegium meeting of September 1 with his boycott decision. Thakur’s failure to make the internal functioning of the collegium more transparent does seem to have cost him the opportunity to fill the seven vacancies despite the five meetings held for that purpose. In the absence of any minutes of the collegium’s proceedings, there may be no record indicating why the five top judges of the country, in five successive meetings, could not come to any decision on the seven vacancies waiting to be filled in the Supreme Court.

Due to its reluctance to introduce transparency in the functioning of the collegium, the judiciary is more than just playing into the hands of the executive in the ongoing turf war over judicial appointments. It is violating the very premise on which the Supreme Court created the collegium system, way back in 1993 in what is known as the Second Judges Case, while wresting primacy in judicial appointments. Though the Constitution required the government merely to consult the Chief Justice of India, the 1993 verdict clarified that the opinion that would have primacy thereafter would be “not merely his individual opinion, but the collective opinion”, which had been formed after taking into account the views of the other collegium members.

But the principle of effective consultation seems to have been honoured more in the breach than in the observance, right from the early years of this extra-constitutional mechanism. This is evident from an opinion delivered by the Supreme Court in 1998 on a presidential reference in the so-called Third Judges Case. Requiring the collegium to be transparent within itself and with the government, the Supreme Court expressed “the optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges Case and this opinion.”

That the Supreme Court had been reduced to expressing such an “optimistic view” in 1998 about the chief justices of India to follow was a damning admission that the earlier ones had not worked the collegium system as promised by the 1993 verdict. Thakur’s predicament shows that little has changed since 1998 to bear out the optimistic view expressed then.

Which is why, when Chelameswar blew the whistle, one of the former members of the collegium, Justice Ruma Pal, came out in support of him saying:

“Justice Chelameswar is asking for nothing more than what was laid down in the Second Judges’ Case that reasons for decisions to appoint need to be recorded. One reason the collegium was set up was to ensure the process could be more transparent. Recording reasons is fundamental to transparency. This is the standard the judiciary requires of others. Justice Chelameswar is justified in saying that it should follow the same standard.”  

Walking the talk

Adding to the irony is the failure of the collegium to make up its mind on the government’s draft of a fresh memorandum of procedure in terms of the Supreme Court’s order of December 2015 on judicial appointments. The memorandum issue too was on the agenda of the five collegium meetings held in the last two months. The collegium finds itself on the defensive as even the existing memorandum, framed in keeping with the verdicts in the Second and Third Judges Cases, is categorical about transparency.

 “The opinion of members of the collegium in respect of each of the recommendations … would be made in writing and the Chief Justice of India, in all cases, must transmit his opinion as also the opinion of all concerned to the Government of India as part of record.”  

It was no surprise therefore that, in its December 2015 order, the Supreme Court bench came close to admitting that such transparency was yet to be adopted by the collegium. While giving guidelines to the government on the drafting of the fresh memorandum of procedure, it said:

  “The Memorandum of Procedure may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the Judges in the collegium ... consistent with the requirement of transparency in the system of appointment of Judges.”  

Since the head of the bench that passed this order was none other than Khehar, who is due to take over as the next Chief Justice of India on January 4, it remains to be seen if the Supreme Court will finally walk the talk on transparency.

Manoj Mitta is the author of The Fiction of Fact-Finding: Modi and Godhra and co-author of When a Tree Shook Delhi: The 1984 Carnage and its Aftermath.