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I have been greatly perturbed over the last few days over an otherwise excellent and sober judge in the Supreme Court (Judge No. 5 in the hierarchy) going public over the lack of transparency in the working of the collegium system: A controversial system for the appointment of judges of the higher judiciary, but now constitutionally entrenched since the decision in the NJAC case (2015).
The stated concern of the judge about a lack of transparency was commendable. But since he went public about it, its implications are the following: One, that the first four members of the collegium were not unduly concerned about “transparency”; two, that their response to this charge must remain mute since the time-honoured principle of judicial rectitude prevents these four judges from going public; three, the public has only one side of the picture, and can never have the other side because that would revive what was once (but now is not) in the public domain — a debate about the efficiency or otherwise of the collegium system. But this article is not about the collegium or about its alleged lack of transparency. It is about something more basic: That governments in power simply rejoice and even attempt to step in whenever there are dissensions amongst members of the higher judiciary, and especially when such dissensions are on account of judgments not to the liking of the government of the day.
Disappointed with the then majority judgment (10:1) in the first Bank Nationalisation case (1970), in which the court initially struck down the Indira Gandhi government’s attempt to nationalise banks, and disappointed again with the still later majority judgment (7:6) in a bench of 13 judges in the Fundamental Rights case, (which established for the first time the Basic Structure theory of the constitution) the then government of the day (commanding an overwhelming majority in Parliament) initiated for the first time (but not for the last) a new experiment — of not appointing the then senior-most judge as chief justice of India on the retirement of sitting Chief Justice S.M. Sikri.
The reason given was that the next three senior-most judges — Justices J.M. Shelat, K.S. Hegde and A.N. Grover — were the prime movers and shakers in the Fundamental Rights case. So the government then appointed Judge No. 4, A.N. Ray, as chief justice of India (the first three then resigned). Justice Ray was the judge whose sole dissent in the 11 judge bench decision in the Bank Nationalisation case had pleased the government greatly. Former Attorney General Chandubhai Daphtary, then nominated Member of Parliament, summed up the “First Supersession” (as it has now come to be known) in a speech in the Rajya Sabha as follows: “The boy who wrote the best essay has now got the first prize”.
But governments in power look not only for dissensions amongst judges in the higher judiciary; they have an institutional long memory as well — almost elephantine. When a couple of years later, the time came for A.N. Ray to retire as chief justice of India at 65 — the man who should have succeeded him was the man who sat in Court No. 2 — H.R. Khanna (his portrait now hangs in that court). But Khanna not only displeased the government by authoring the majority judgment in the Fundamental Rights case; he had also written what many now regard as a brilliant solo dissent in the case of ADM Jabalpur (1974) where the majority (4:1) overruled nine high court judgments, extinguishing the lamps of personal liberty in those dark days of internal emergency. Breaking with tradition, A.N. Ray, then chief justice of India (now due to retire), “recommended” to government as his successor not H.R. Khanna — his name was anathema to the government — but the judge who sat in Court No. 3, M.H.
Beg, which led to the “Second Supersession” that of Khanna who resigned — but in a blaze of glory.
Although the dissenting judge in the Fundamental Rights case (1973) was Y.V. Chandrachud — the case that first propounded the basic structure theory of the constitution — in the very next constitution bench case in which he sat, Justice Y.V. Chandrachud dutifully accepted (in accordance with precedent and tradition) the majority view in the Fundamental Rights case. In his judgment in Indira Gandhi vs Raj Narain (1975) he cemented the basic structure theory declaring unconstitutional some of the provisions of the Constitution Thirty-ninth Amendment Act.
If a judge in the collegium doesn’t like the way it functions (for lack of transparency or any other) he can quit and then complain about why he quit. People would then understand him better.
Somewhat similar advice was given at a much more exalted level to a now long forgotten president of Pakistan when that country still boasted of a Westminster model of government. He had then asked the chief justice of Pakistan what he must do if he found a measure passed by Pakistan’s Parliament totally wrong and not in accordance with the true spirit in which the original Pakistan constitution had been framed (on the Westminster model like ours). Chief Justice Munir’s advice was as wise as it was prophetic: “If you think it is a matter of the gravest importance and you cannot in all conscience accept it or work with it, you can and you must if you are true to your oath resign so that the system must go on; people will know by and by why you resigned and will then sort things out”.
I cannot and will never presume to advise honourable judges of the highest court in which I have practised for long long years — some would say too long. But my unsolicited suggestion would be: Not just to the first five members of the court but to the last five as well, and to the rest in between: “Please do remember, that the citadel never falls except from within”.