Can the Supreme Court create institutions like the judicial colle-gium, not mentioned anywhere in the Constitution, for the appointment of judges to the high courts and the apex court as also for the transfer of judges from one high court to another? Does the principle of the independence of the judiciary from the government permit the court to create such institutions for its own governance? Does the creation of such a collegium amount to an amendment of the Constitution? Can the apex court bypass Parliament, which alone can amend the Constitution, by stating that the judicial collegium is the result of an ``Interpretation'' of the Constitution? Can such a judicially created collegium a secret club of the Chief Justice of India and four of the senior most judges be a totally non-transparent body with no judicial or other remedy against what it does to high court judges? These and other vital issues about Parliament vs the Supreme Court and the Supreme Court vs the high courts in a federal structure havebeen raised for a decision by the apex court by the petition of Justice Vishwanath Gopal Palshikar of the Rajasthan High Court.In 1993, a nine-judge bench of the Supreme Court sat in judgment over the correctness of the view of its 1981 seven-judge bench decision in S.P. Gupta vs the Union of India. The majority had declared that in the matter of appointments to the high courts and the Supreme Court the view of the Chief Justice of India would have primacy vis a vis the Union Government. Only for ``cogent reasons'' the Union Government could overrule the view of the Chief Justice of India. The issue had been referred to a nine-judge bench in the case of Subhash Sharma vs Union of India. By an unexplained process the case became Supreme Court Advocates on Record Association vs Union of India.But that was only the first of the surprises of the judicial process. A reconsideration required that the judges call for the record of what the Supreme Court's successive chief justices of India had done since 1981 in terms of the S.P. Gupta judgment concerning appointments and transfers. That was not done and a national transparent debate on the functioning of the highest judiciary was made impossible. A reconsideration based on reason and the rule of law required examination of the recommendations made by the chief justices of India since 1981, the response of the then Union governments, whether the chief justices in their time had asked the Union government to give the cogent reasons for not abiding by their recommendations and the net result. The material was available. But it was not called for just as none of the previous chief justices of India or of high courts were called upon to inform the court of their actual verifiable experience in the matter of appointments and transfers. The nation wasentitled to know whether despite S.P. Gupta, successive prime ministers and Union law ministers had managed to have their nominees as judges and whether successive chief justices of India had stood up to this? On this basis the nine-judge bench could have identified the mischief, its source and the remedy in the public interest.Proceeding in a factual vacuum, the bench lamented that there was no systematic set of criteria to evaluate or rate the desirable qualities of selectees to the judicial office. But without remedying this, the majority set up a judicial collegium for appointments and transfers. The last surprise was that no aggrieved high court judge was permitted to seek judicial review on the ground of avoiding "any erosion of the credibility of the decisions'' of the collegium. The new divine theory was that the collegium can do no wrong. Judicial guerrilla warfare on the list of those recommended by Chief Justice M.M. Punchhi resulted in a Presidential Reference. In answering this the apex court expanded the collegium to Chief Justice plus four senior most judges without explaining the legal principle on which this was based.It is the collegium now which has been called into question in Justice Palshikar's painful petition of personal injury. He has pointed out how despite a wife suffering from cancer and two unmarried daughters in his care, he was arbitrarily denied transfer back to Bombay from Rajasthan. His wife died. His first daughter got married. Again his request was rejected by the collegium on his representation concerning his second daughter. The special leave petition and the writ petition of the judge give an opportunity to the highest court to remove at least the following consequences of its judgment: high court judges have no fundamental right against arbitrary action of the collegium; they have no fundamental right against mala fide action of the collegium and they have no fundamental right to approach the Sup-reme Court for redressal of the violation of a fundamental right. Does this make a credible collegium?
