Four years ago, on October 16, 2015, the Supreme Court (SC) struck down as unconstitutional an amendment to the Constitution establishing the National Judicial Appointments Commission (NJAC). The amendment and the corresponding law were challenged by the Supreme Court Advocates-on-Record Association (SCAORA) believing, rightly, that the amendment would violate the basic structure of the Constitution by depriving the judiciary of its independence. SCAORA engaged Fali S Nariman, a doyen of the Bar, to argue the case on its behalf. The SC agreed with his submissions and struck down the amendment. At law, the independence of the judiciary was preserved. But is it, in fact? Judge for yourself.
Try and remember, for instance, that barely a few months after the NJAC decision, a sobbing Chief Justice of India (CJI) sought outside help to resolve the institutional problem of getting the government to move on increasing the judge strength. Nothing happened. A few months later, the same CJI complained, in open court, that the government was not implementing the recommendations of the collegium for the transfer of some judges. Nothing happened, except a response given in November the same year by the Attorney General reminding the SC of its Lakshman Rekha and by the law minister of its historic failure during the Emergency. The seeds of the NJAC striking back were sown around that time and the judiciary is today reaping the harvest.
What was the proposed composition of the NJAC? The CJI was the chair, ex officio, and along with him were the next two senior judges. The Union Minister of Law and Justice was an ex officio member along with two eminent persons. They were to recommend persons for appointment as judges of the SC and high courts and the transfer of judges of the high courts (including chief justices). Notwithstanding the declaration of unconstitutionality of the NJAC, I believe its core functions are now being performed by a body minus the two eminent persons. So, the recommendation and appointment of judges has been taken over by a “new NJAC” and without any apparent protest. Why do I say this?
The collegium cut off its hands when it reversed a signed and sealed (but not delivered) resolution on January 11. To an outsider, it appeared that a resolution of the collegium lacked sanctity — and this seems to have been exploited by the “new NJAC”. Let me cite a few glaring instances. As recently as in late August, the Economic Times reported that the CJI had written to the law minister that 43 recommendations made by the collegium were pending with the government and the vacancies in the high courts were to the extent of about 37 per cent. Also, the collegium could not consider the appointment of 10 persons since some information was awaited from the government for varying periods. Who is calling the shots — the government?
Some more questions. On April 8, the collegium recommended the appointment of Justice Vikram Nath, the senior-most judge of the Allahabad High Court as the chief justice of the Andhra Pradesh High Court. Sometime later, the government referred back the recommendation for reconsideration. On August 22, the collegium reconsidered the recommendation “for the reasons indicated in the file” and recommended his appointment as the chief justice of the Gujarat High Court. The reasons indicated in the file are not known and it would certainly be in the interest of the institution if they are disclosed. If the judge was unfit or unsuitable for appointment as the chief justice of Andhra Pradesh, how did he become suitable for Gujarat?
On September 5, the collegium recommended that Justice Irshad Ali be made a permanent judge of the Allahabad High Court. The recommendation was made after considering (i) the opinion of judges of the SC conversant with the affairs of the Allahabad High Court, (ii) report of the committee of judges to evaluate his judgments, (iii) possible complaints against one of the judges under consideration (could also be Justice Ali), (iv) additional information received from the chief justice of the Allahabad High Court and (v) observations of the Department of Justice and (vi) an overall assessment. What did the government do? It rejected the recommendation (without furnishing any reason or justification) and on September 20 extended his term as an additional judge by six months. Did anybody protest?
Justice Akil Kureshi, the senior-most judge of the Gujarat High Court, was recommended on May 10 to be the Chief Justice of the Madhya Pradesh High Court after considering all relevant factors and being found suitable in all respects. Guess what? The government sent two communications to the CJI on August 23 and 27 along with some material. On reconsideration of the communications and the material, the collegium modified its recommendation on September 5 and recommended his appointment as the Chief Justice of the Tripura High Court. Again, the contents of the communications and the accompanying material are not known. Is there something so terribly secret about them that it would not be in the interest of the institution to make a disclosure? As in the case of Justice Vikram Nath, it would be worth asking how Justice Kureshi is fit or suitable for appointment as the Chief Justice of the Tripura High Court and not of the Andhra Pradesh High Court. Have we not often heard the SC say that sunlight is the best disinfectant? And then, electric light the most efficient policeman? More than a month has gone by and even this recommendation has not been acted upon by the government. Any protest?
Finally, the transfer of the Chief Justice from Madras High Court to the Meghalaya High Court — whether it should have taken place or not is not the question. It could have been achieved more gracefully, like the manner in which a former CJI dealt with a delinquent judge of the Delhi High Court. After a brief discussion with the CJI, the judge quietly resigned. But some other more important questions arise in the context of the independence of the judiciary. Was she spied upon by the Intelligence Bureau (IB)? The Times of India reported on September 30 that the CJI had asked the Central Bureau of Investigation to “take further action in accordance with law” on a five-page report of the IB on financial and other irregularities alleged against her. Should the IB be blindly believed — there is a well-known incident of a teetotaller being called a “boozer” by the IB? Was the CJI kept in the dark about her being kept under surveillance? How many other judges are being spied on? Isn’t it somewhat unusual and frightening that judges, expected to render judgment without fear or favour, are subject to surveillance by the IB? Can their independence be guaranteed under these circumstances?
It seems to me that the unconstitutional NJAC is rearing its head and is now Frankenstein’s monster. The advice of the two eminent persons postulated by the NJAC is no longer required. Actually, there is now no need to amend the Constitution to bring back the NJAC — it is already in existence with a vengeance. At the present moment, silence on crunch issues is not golden.
This article first appeared in the print edition on October 16, 2019 under the title ‘Govt calling the SC shots?’ The writer is a retired justice of the Supreme Court of India.