Fali S Nariman, in his article, ‘My unsolicited suggestion’ (IE, September 7), subtly but surely points out the perils of Justice Chelameswar’s recent public revelations about the lack of transparency in the collegium that appoints judges. His basic claims are simple: First, history has shown that any public bickering between judges plays into the hands of the government; second, cognisant of this history and the need for judicial rectitude, dissatisfied judges should first quit and then criticise the system. Unfortunately, both points surprisingly miss the wood for the trees and end up preserving the very collegium system whose reform Nariman has often taken up cudgels for.
It is a platitude, as Nariman says, that governments in power rejoice when there is dissension amongst members of the higher judiciary. This can be extended further — governments in power are always on the lookout for opportunities to weaken the judiciary, be it creating internal dissensions, magnifying instances of judicial impropriety, dangling the carrot of post-retirement appointments or the stick of impeachment. The key question is not whether judicial actions will further add fuel to the ever-incandescent governmental fire of interference. If that question is asked, then the righteous battle fought by Nariman and senior members of the Bar in petitioning the collegium to reconsider its decision to appoint Justice P.D. Dinakaran to the Supreme Court despite a severely blemished record must rank very high on the list of actions that have played right into the hands of the government.
Instead, it should be this: Are the concerns raised by Justice Chelameswar about the lack of transparency in the collegium and the need for consequent reforms legitimate? Once this is posed, even the most dogmatic defender of judicial independence will not be in a position to make a decent argument that no such reform is required. Judges of the Supreme Court and high courts wield massive powers over the lives of ordinary Indians. They can also, occasionally, err. The least that citizens deserve is to know how such judges are selected. Not who said what about who, but as Justice Chelameswar has said, that there are clearly established criteria, that records are maintained with views of those who participated at selection meetings, and that names were not selected on a whim. Transparency is the first step towards demonstrating that decisions are based on reason and not caprice. By consciously overlooking this fundamental question, Nariman entirely forsakes the present for a masterful lesson in judicial history.
While that lesson is a tour de force, it unfortunately omits to make a critical distinction. Unlike the 1970s, when the boy who wrote the best essay got the first prize from the prime minister of India, today, the prize distribution ceremony is presided over by the chief justice of India and his collegium. As a result of this significant change, many boys who write good essays don’t get any prizes at all. Take for example Justice M.L. Pendse of the Bombay High Court, widely acknowledged, including by Nariman himself, as a fine judge, having written several landmark judgments. Despite this stellar record, he was not brought to the Supreme Court for extraneous reasons, which Nariman records in detail in his autobiography. When recounting governmental interference in making Justice A.N. Ray, the chief justice of India out of turn, critical reflection on Justice Pendse and several more of his ilk, would have been appropriate.
In such a dire scenario, while judicial rectitude in not speaking publicly while holding office is significant, it cannot, nonetheless, be determinative. This is especially so since after the Supreme Court firmly shut the door on an attempt by Parliament to reform judicial appointments in its poorly reasoned NJAC judgment, the only recourse for such reforms is the Supreme Court itself. Unfortunately, as the saga over the Memorandum of Procedure demonstrates, appointment of judges is now a power struggle with both the judiciary and the government scrambling to demarcate territory.
In such a situation, to focus on an antiquated notion of rectitude is quaint, but blinkered. We all need Nariman’s wise counsel to provide perspective. But Justice Chelameswar’s timely and courageous statements have made public a fundamental fact known to those within the legal fraternity —there is something rotten in the state of the judiciary. The quality of judgments is poor, time taken to deliver them poorer, stories of corruption are hushed but not infrequent, all of which is facilitated by absolute opacity in institutional functioning.
As a nation, we now have two options — take recourse to arguments of rectitude and interference and preserve the rotten status quo with some superficial patchwork; or acknowledge that the judicial citadel is crumbling and vow to rebuild a stronger citadel in its place. The choice is ours.