Even as Chief Justice of India T S Thakur on Saturday said that differences among the judges over the collegium’s procedure would be sorted out, former Chief Justice of India R M Lodha maintained that Justice J Chelameswar “has a point” when he asks the collegium to record minutes of the confidential meetings and underlined that the time has come for the judiciary to be “more transparent”.
Justice Lodha, who headed the collegium as CJI in 2014, said it was “not a good sign” that differences within the collegium — that comprises the five most senior judges who take calls on appointments and transfers of judges — have come out in the open.
Accepting that this might influence the process of finalising the Memorandum of Procedure (MoP) where the government and the judiciary are at loggerheads over reforms in the collegium, he warned that “people” might take advantage of this controversy and, hence, it would be in the best interest of the institution that all judges put their heads together and find a solution.
The retired Supreme Court judge was talking to The Sunday Express in the wake of a controversy after Justice Chelameswar wrote to Justice Thakur that he would not attend meetings of the collegium in future and that recommendations by the other four judges should be sent to him “by circulation”. This, effectively meant, judges putting their recommendations in writing which, in turn, implied recording of the minutes by the collegium. The judge’s communication, it is learnt, has questioned ambiguity and lack of transparency in the decision-making process of appointment and transfer of judges.
Justice Thakur, who was attending the convocation of a law college in New Delhi, briefly reacted to the controversy: “We will sort it out”.
Justice Lodha, one of his predecessors, expressed concerns that the turn of events is “not a very good sign” since “appointment of judges is a very serious business” and “judiciary is the last hope of the people” for whom appointments of judges mattered a lot.
“Every member in the collegium should be able to speak his mind freely and that must be welcomed by others. Whether minutes should be recorded or not that could also be looked into. The time has come when you have to provide for transparency and whatever best can be done to achieve this objective must be done,” he said.
Justice Lodha added: “There is a point in what Justice Chelameswar has said. It is now for the institution to see
what is the best that can be done; how to achieve that object and how to resolve this problem.”
“It (the controversy) is not something to cheer about. People may take advantage of this controversy but it should be avoided. Good sense should prevail. They (judges) must sit together. I am certain they will sit together and find a solution. I am sure the grievances of Justice Chelameswar will be redressed to his satisfaction. It must be that way,” said the former CJI.
Hoping that the “churning” within the institution will bring some radical changes in the manner in which the collegium functions, Justice Lodha underlined that judiciary as an institution is above every individual.
“They are all senior judges. They can think objectively and good for the institution. I am hopeful they will sit together. Nothing will be done that damages the institution. They would already be discussing this. I am sure this will bring out something good for the institution,” he said.
When asked, Justice Lodha said that if somebody from the institution speaks to him, he would definitely try to help since the institution is very dear to him and he owes everything to it. “I would like nothing ever harms the institution and all should put their heads together so that institution’s image and its role are enhanced,” he said.
Justice Chelameswar, incidentally, was the lone judge who had favoured doing away with the collegium system when a five-judge Constitution Bench, in October 2015, struck down an amendment to validate the National Judicial Appointments Commission (NJAC) Act.
Last year, when a Constitution Bench gave a 4-1 verdict striking down the NJAC, he had differed with the other judges, underlining that the judiciary’s power over appointments was “not the only means for the establishment of an independent and efficient judiciary”. He had called the proceedings of the collegium “absolutely opaque and inaccessible both to public and history, barring occasional leaks”. Justice Chelameswar will retire in June 2018.