Launching an offensive against the working of the “erstwhile” collegium system as it defended the new National Judicial Appointments Commission (NJAC), the government Wednesday asked the Supreme Court why a 59-year-old woman lawyer, who happened to be a close relative of the then Chief Justice of India, was appointed as a judge in the Calcutta High Court.
Attorney General Mukul Rohatgi said that one of the five judges in the High Court collegium, who had opposed this, had also written a letter complaining that his elevation to the top court was blocked since he objected to the appointment of the woman lawyer on the grounds of poor practice, below average educational skills and her advanced age.
“I dare say this but there are several examples like this. And what was the weightage given to the letter written by a fellow judge? How was that not important to collegium?” Rohatgi asked a Constitution Bench led by Justice J S Khehar.
In 2013, after being overlooked for elevation to the Supreme Court by a collegium headed by the then CJI, Altamas Kabir, Gujarat High Court Chief Justice Bhaskar Bhattacharya had sent a letter to the President, Prime Minister and the CJI. He alleged that Justice Kabir impeded his elevation because, as a HC collegium member, he opposed the appointment of Kabir’s lawyer sister to the bench.
In 2010, Justice Kabir’s sister, Shukla Kabir Sinha, was appointed as a Calcutta High Court judge after the HC collegium ignored Justice Bhattacharya’s objections. The SC collegium approved the appointment although Justice Kabir was said to have recused himself from the meeting.
When the bench asked why did the government agree to appoint her, the AG replied: “Why did the four judges of the High Court do it? Judges have more legal knowledge than the government for sure and that has been the argument throughout.”
Rohatgi argued that the collegium maintained opacity and the top court kept asserting its powers relating to appointments and transfers of judges by virtue of its 1993 judgment in Second Judge’s Case when no such exclusive authority was accorded to it under the Constitution.
“How can a judgment say whatever transfers judges do, it would be deemed to be in the interest of justice? How can a judgment take away power of judicial review which is one of the facets of the basic structure? The 1993 judgement does it and that is why it must be struck down,” he said.
Describing them as “unfortunate happenings,” Rohatgi pointed out there were illustrations where transfers were done not in the interest of justice but for other considerations. “There were doubts of very serious nature, as happened in Justice Dinakaran’s case. He was the chief justice himself at Karnataka High Court. He was supposed to come here (to SC as a judge) but he was sent to another High Court. All this give a bad name to the institution,” he said.
The collegium had initially cleared Justice Dinakaran’s name for appointment as a SC judge in 2009 but after the government raised an objection, an inquiry was conducted. He was, however, transferred to the Sikkim High Court in the wake of corruption charges against him. Pending impeachment proceedings, Justice Dinakaran resigned in 2011.
Responding, the bench said it was the government’s duty to collect information about the judges and that it was concerned about people’s conduct only between 10 am and 4 pm when the courts functioned.
Rohatgi, however, said that the 1993 judgment held that judges take into account even the personal traits of the person to be appointed as a judge and, hence, it may not be right for the bench to say that people are judged only during court hours.
He added all this could be a “joint problem” and a “problem with the system” but the government alone could not be blamed for everything. The bench advised the AG that he should argue on principles rather than on individual cases, to which Rohatgi finally agreed.
The AG will adduce Thursday a chart with cases where recommendations made by the collegium were objected to by the government.