View: Collegium is accustomed to controversies, but its recommendations are now under attack

By JUSTICE MADAN LOKUR
Nobel laureate Bob Dylan crooned: “Because something is happening here but you don’t know what it is. Do you, Mr Jones?” Well, if I was Mr Jones my answer would be in the negative. I am referring to the recent recommendations of the Supreme Court collegium that seem to have stirred a hornet’s nest among lawyers and judges. Of course, the collegium is accustomed to controversies, but its recommendations are now under attack.

What are the provocative recommendations and why are they being critiqued? We need to ponder over this since the developments indicate an absence of consistency bordering on arbitrariness. There are no fixed criteria for selection of judges to the SC and the requirements keep changing. There are considerations of seniority, adequate representation of high courts, gender, religion, caste and of course merit sometimes finds a place as well.

A new criterion has recently been introduced: Who will be the Chief Justice of India, for how long and who should be blocked. Is it possible to rid this Chancellor’s Foot syndrome? Last week, two senior judges of the SC objected to overlooking seniority while recommending appointments to the SC.

A chief justice who was again overlooked had earlier been recommended for appointment to the SC, but the resolution of the collegium was not forwarded to the government for a month and supposedly overturned on undisclosed additional material which apparently came into existence after the composition of the collegium changed. Why was the resolution of the collegium withheld for almost a month? Is this permissible?

Appointments to high courts are a mess. A candidate below 45 years of age was recommended for appointment while several other candidates below 45 years were earlier rejected — the basis being the memorandum of procedure (MoP) and the consistent view of the collegium that the candidate must be 45 years old on the date of the recommendation by the high court collegium.

What did this candidate have which the earlier ‘rejected’ candidates did not? There is considerable speculation on this, and it might be correct. A candidate from another large high court was recommended for appointment by the collegium though he did not meet the income criteria. This too was in violation of the MoP and despite the consistent past practice. Was there anything special about this candidate? Again, there is speculation and it might be correct. Newspaper reports suggest that the government is considering the rationality of this recommendation.

Why didn’t the government step in when the MoP and past practice regarding the age criterion was violated? Are some candidates more equal than others or is there some substance in the speculation? Now, a spate of transfers has caused discomfiture among many.

A senior and eminently competent judge from one high court has been transferred out supposedly for the better administration of justice, giving an impression that his presence in the high court was not conducive to the administration of justice. Does this not make the transfer punitive? The high court bar association obviously believes so and resolved to boycott work for a week.

A senior and equally competent judge in another high court has been transferred, again for the better administration of justice. The bar association of this high court has also resolved to boycott work. What takes the cake is the transfer of the chief justice of a chartered high court to a much, much smaller high court. While all high courts are equal and equally respected, this transfer lacked grace and whatever the reason (and there must be a good one) it is ex facie suggestive of humiliation and she has done well to resign.

The mystery behind the change in the appointment of the chief justice from one high court to another will need a Sherlock Holmes to unravel. The recommendation was kept pending for a few months and then, out of the blue, a change is made for an undisclosed reason — not even for better administration of justice. Why the secrecy? Transparency does not end with putting up resolutions of the collegium on the website, or not putting them up or taking them down — it begins from here.

The last illustration is the indecision in the appointment of the chief justice of the same high court to which an appointment was made in violation of the MoP and past practice. The recommendation of the collegium had been pending with the government for a very long time — long enough for the bar association of the parent high court to file a petition in the Supreme Court.

The government has since conveyed its view to the Chief Justice of India, not on affidavit as it should be, but through a letter. If newspaper reports are to be believed, a judicial issue pending in the SC will be dealt with administratively by the collegium. Something is happening here but you don’t know what it is.

(The writer is a former judge of the Supreme Court)