Appointing judges: the 'best kept secrets' must tumble out

Seniority is a sound principle. However, it is often honoured only in the breach when it comes to the elevation of judges to the higher benches in India. Commenting on “judicial appointments and disappointments”, the late Justice Krishna Iyer described the Supreme Court Collegium as “a curious creation with no backing under the Constitution” in which “a sort of anarchy prevails.” Many a time, anarchy takes the shape of arbitrariness and, in the process, fairness and objectivity become the first causalities. Sometimes, judges with integrity are sidelined, ignored or even made to quit.

Judicial appointments are often “one of the best kept secrets in this country” as Justice Ruma Pal, one of the finest judges the Supreme Court ever had, said. Like appointments, transfers and elevations in the constitutional courts are also often determined by yardsticks that are neither definite nor transparent. Occasionally, merit could become demerit and fairness, a disqualification. We are perhaps in a “post-truth” judiciary. “Post-truth” denotes a political situation where facts and reason are, alarmingly, substituted by emotions, beliefs and prejudices. The Collegium in the “post-truth” era is creepier than what Justices Krishna Iyer and Ruma Pal imagined.

Three eminent judges of the Supreme Court – J.M. Shelat, K.S. Hegde and A.N. Grover -- were superseded by a junior judge, Justice A.N. Ray, in 1973. These three judges were among the majority on the bench that decided the famous Kesavananda Bharati case which said that Parliament cannot alter the basic structure of the Constitution by invoking its power of amendment. Justice Ray, who opined otherwise, was appointed as the Chief Justice of India. The three judges who upheld the Constitution against a mighty executive had to resign.

For authoring an emblematic dissent during the dark era of Emergency, Justice H R Khanna was denied elevation as chief justice by the Indira Gandhi regime. He was the only judge in ADM Jabalpur (1976) to hold that fundamental rights cannot be suspended even during a national emergency. The majority on the bench held otherwise. Justice Khanna was thereafter denied the chief justice’s berth, which was legitimately due to him. The New York Times on April 30, 1976, wrote in its editorial:

“If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court. It was Mr. Justice Khanna who spoke out fearlessly and eloquently for freedom this week dissenting from the court’s decision upholding the right of Prime Minister Indira Gandhi’s Government to imprison political opponents at will and without court hearings.”

This is how erudite dissent becomes “an appeal to the brooding spirit of the law, to the intelligence of a future day,” as Chief Justice Charles Evans Hughes put it.

Justice Jayant Patel belongs to the “Justice Khanna school” of Indian judiciary, which represents the virtues of the constitutional courts -- honesty, fairness and integrity. He is treated in high esteem by the lawyers not only in Karnataka but in the Supreme Court and other high courts as well. He was bold enough to tell truth to power as he did in the Ishrat Jahan encounter case. He represents the constitutional virtues in their best form, and practised what he preached. Therefore, a system that fences him out is intrinsically undemocratic and potentially perilous. Independence of the judiciary has been shown by the Supreme Court as the raison d’etre for striking down the National Judicial Appointments Commission (NJAC) and resurrecting the Collegium. That independence of the Collegium itself is now under serious attack for obvious reasons.

The Supreme Court had dealt with the issue of transfer of judges of the higher courts in the Supreme Court Advocates-on-Record Association case, popularly known as the Second Judges Case. After interpreting Article 222 (1) of the Constitution dealing with the transfer of judges, the court held that a second transfer of a judge who was once transferred, without obtaining his willingness, should not be ordered unless there are unavoidable circumstances. The court also said that “a transfer effected in public interest may not be punitive but all the same the Chief Justice of India must take great care to ensure that in the guise of public interest the judge is not being penalised”. In Jayant Patel’s case, these principles were blatantly violated. The system has been unfair to a fair judge, and he cannot even take legal recourse in such matters.

Even with Friday’s announcement by the Collegium that it will put out the recommendations it makes, and the reasons for them, online, one fears that only the decision, and not the decision-making process, will become public. Unless we choose to have independent and transparent commissions, as done by the UK and Canada, to deal with matters connected with the higher judiciary -- from initial appointment to transfer and promotion -- we will remain a “democracy for the few,” as famously coined by Michael Parenti.

The Bar and a section of the media have been severely critical over the treatment meted out to Justice Patel. But the silence of political parties, even the Opposition, is dispiriting. It is high time political parties realised that any deterioration in the system of judiciary is essentially a political crisis. As Robert A. Leflar said, “The quality of our judges, and of their performance in the judicial process, is probably the surest guide to the quality of our civilisation.”

 (The writer is a lawyer in the Supreme Court and Kerala High Court and author of “Rethinking Judicial Reforms: Reflections on Indian Legal System”).