The letter by Justice Kurian Joseph to the Chief Justice of India, also sent to 22 companion justices, requests for a bench of seven justices to be formed to “suo motu take up the matter of the government sitting on the two names” for proposed elevation. The names of Indu Malhotra and Justice K M Joseph were sent by the collegium two months ago, but the government has not yet responded to the proposal. The prolonged silence, writes Justice Kurian Joseph, imperils the “life and existence” of the court. And he adds, “history would not pardon” it were the court to do nothing to question this kind of governmental conduct.
Some are bound to see this as an overreaction, but would that be a fair reading of the recent history?
The first constitutional amendment under the present regime enacted the National Judicial Commission with a facilitating Act; Both the constitutional amendment and the Act were struck down by a five-judge bench with a 4:1 decision (with Justice J. Chelameswar dissenting) on the ground that while the amendment affected judicial review as an aspect of the “basic structure” of the Constitution, the Act, in effect, diminished the “primacy” of the CJI and the collegium.
The court indicated its grounds for doing so; it preserved the plenary powers to amend the Constitution and the law. But the executive did not propose a lawful amendment, and neither did Parliament. The court went an extra mile to ask the executive to propose a Memorandum of Procedure (MoP); more than a year has gone by, but the executive has not yet finalised it, despite reminders by the court. Instead, the executive seems to claim a power of veto over the names proposed; in doing so, it seeks to do indirectly what it could not directly — thus violating a foundational axiom of the rule of law.
Indeed, the executive seems to claim powers it does not have regarding the elevation of High Court and Supreme Court justices and transfers of High Court justices at least since the 1998 Advisory Opinion. Significantly, the judicial collegium was not questioned, only the composition and the procedure of functioning were sought to be clarified.
Contrary to the heavy propaganda now of judges appointing judges, the Union government had itself accepted the new collegium system of five senior-most justices. It was also accepted that the executive will convey its concerns to the CJI if a security issue was involved; if the collegium reiterated them, the names will become final. Despite occasional grapevine criticism of the collegium, the system continued in place.
Any reform of the system will have to come from within the court itself. It has made a welcome beginning by posting some details on the website; but it must do more, for there is no more demanding virtue than transparency. There are known ways of managing creative discretion but none to eliminate it altogether from the appointments process when highly qualified justices and lawyers seek a few exalted constitutional positions.
Indeed, as I wrote in these columns, a citizen will never know why some persons are elevated or transferred; and this thick epistemic veil of ignorance will exist under any system, whether executive or judge dominated. This is exceedingly unfortunate; whether this misfortune is democratic is an open question. The governance tendency comprising non-response to troublesome situations seems to be on a high growth curve. The four senior-most justices had earlier pointed out, in a press conference, that the recommendations of the collegium concerning the MoP were not responded to for a long time, even though finalised by the court. Somehow, the public and media debate largely focused on the aspect of the prerogative of the CJI to form benches.
However, Justice Joseph’s letter to the CJI seems to adroitly roll up the issue of the collegium with that of the power to constitute the bench, by suggesting a seven-member bench of senior-most justices to affirm the collegium finality in a no-reply situation. It may not be His Lordship’s intention, but a breach will have been made if the request is acted upon. More things are at stake than mere precedent. Good governance must respond to letters, at least by other constitutional authorities. Not merely is the lack of response to the CJI an affront to the dignity of a high constitutional office, but it may also entail the offence of contempt, scandalising the court. It may be worth recalling that Mikhail Gorbachev, in the heady days of glasnost and perestroika, enacted a Right to Reply, with some harsh penalties if the authorities failed to respond in time.
Second, there are prescribed or ordained ways of handling constitutional disagreements. Sheer assertion of the power of not responding is not one of them. The executive clearly holds a different view than the justices on the powers of elevation and transfer; the way ahead, as already discussed, is to have a new and creative National Judicial Commission Act, which is acceptable to both the high organs of governance. The option of “committed judiciary” is not historically open; it is also undesirable and undemocratic.
Third, the CJI should be, and must remain, in a position of robust dialogue with dissenting brethren and blend his power as master of roster with respect for the suggestions and opinions of others. I know how difficult it is to remain first among equals but that is precisely what the Constitution and the oath (under the Third Schedule) require.
Constitutional democracy is not imperilled by dissent and disagreement but by an overweening sense of power in one person or institution. The Fundamental Duties of all citizens (under Part IV-A of the Constitution) require us to interrupt power from dreams of limitless sovereignty. We do not yet have a Constitution without constitutionalism; but let not future history say that we did not deserve, in the first place, a constitutional democratic republic. Let us rekindle, with a constitutional flame, all our institutions.