Tuesday 24 October 2017 News Updated at 07:10 AM IST
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Collegium's crisis of legitimacy - Deccan Herald
Collegium's crisis of legitimacy
Faizan Mustafa,
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The Supreme Court, DH file photo
A few years ago, during UPA rule, the Supreme Court had, to the delight of the BJP, called the Central Bureau of Investigation (CBI) a "caged parrot.”

Under the BJP government, not much has changed as far as CBI is concerned. But then, the CBI does work under the administrative control of the Ministry of Home Affairs and therefore if it is a "caged parrot” of its political masters, it is no surprise. But what about judges themselves, who are totally independent? Have not successive governments tried their best to pack the judiciary with committed judges or used transfer powers against bold and independent judges? The only difference is, earlier the executive used to do it on its own; now, the Supreme Court Collegium, at times, indulges in it, with no remedy available against its decisions. It was reassuring, therefore, to see that a Supreme Court bench on October 5 has observed that "judges are not pro-government.” Perceptions are not always right.

If there is really an effort to make judges "caged parrots”, it is indeed a matter of grave concern. Justice Jayant Patel’s resignation in response to the proposal to transfer him from the Karnataka High Court first to Bombay High Court and then to Allahabad High Court when only 10 months were left for his superannuation has sent shockwaves in legal circles. People have smelt a rat here. After all, it was Justice Patel who had ordered a CBI probe into the infamous Ishrat Jahan encounter in Gujarat. He had also quashed the Gujarat ordinance delaying elections to local bodies, and the BJP had done poorly in those elections.

Also, the Karnataka High Court currently has more than 50% vacancies. Therefore, depriving it of a senior judge, particularly when this judge was due to take over as acting chief justice, naturally raises eyebrows.

Others who were/are not in the good books of the Narendra Modi government, too, have suffered, and therefore this controversy. The BJP government did reject in 2014 the name of former Solicitor General of India Gopal Subramaniam, who would have made an excellent Supreme Court judge. It has not yet cleared the transfer of Uttarakhand Justice K M Joseph to Hyderabad, although the Collegium recommended it some 18 months ago. It seems the government is unhappy with his decision in 2016 of quashing President’s rule in Uttarakhand. Even Karnataka’s current Chief Justice S.K.

Mukherjee was to be transferred to Uttarakhand in May 2016 itself, but
the government was not keen. Had the government moved on Justice Mukherjee’s transfer, both Justice Joseph and Justice Patel would have gotten their due.

Justice Rajiv Shakdher’s transfer from Delhi to the Madras High Court in 2016 was also controversial as he had quashed the Centre’s "look out” notice against Greenpeace activist Priya Pillai. With so many controversial decisions, the Collegium is facing a crisis of legitimacy.

Decades ago, the Supreme Court had itself taken a strong stand against such transfers by the then Congress government and had observed that judges cannot be transferred at the "whims and fancies of the government” and that the Chief Justice of India’s opinion on transfers mattered. Transfer of a judge is not to be used to "bend the judge”. Now, one must say, what’s bad if done by the executive is equally bad if done by the Collegium.

All governments do want a submissive judiciary. Even before the birth of the republic, even a statesman of Jawaharlal Nehru’s stature elaborated the government’s view on the subject on September 10,1949, in the Constituent Assembly: "Within limits, no judge and no Supreme Court can make itself a third chamber. No Supreme Court and no judiciary can stand in judgement over the sovereign will of Parliament. If we go wrong here and there, it can point it out, but in the ultimate analysis where the future of the community is concerned, no judiciary can come in the way. And if it comes in the way, ultimately the whole Constitution is a creature of Parliament.”

He went on to observe on the possibility of picking up pro- government judges: "If courts proved obstructive, one method of overcoming hurdle is… the executive which is the appointing authority of judges begins to appoint judges of its own liking for getting decisions in its own favour.”

In a speech in Parliament on May 12, 1973, M. Kumaramangalam, Indira Gandhi’s cabinet colleague, defended the appointment of Justice A N Ray as the Chief Justice of India superseding three senior-most judges: "We had to take into account what was a judge’s basic outlook on life…Was it not right to take all these aspects into consideration? Was it not right to think in terms of more suitable relationship between the court and the government? … In appointing a person as chief justice, I think we have to take into consideration his basic outlook, his attitude to life and his politics.”

The Indian constitution has not provided for any accountability of judges. It merely says that a judge can be impeached by Parliament on grounds of 'proved misbehaviour or incapacity’. We have not created any mechanism to make our judges accountable short of impeachment. There is no system to evaluate judicial performance either. There may be situations that do not warrant impeachment, and mere transfer may be sufficient, if it is fairly done. Let us create judicial accountability as it promotes three discrete values: the rule of law, public confidence in the judiciary, and institutional responsibility.

It is heartening to note that the Collegium has finally decided to put on the Supreme Court’s website not only its recommendations on the appointment, transfer and elevation of judges, but also state the reasons for the same. The controversy over Justice Patel’s resignation has surely contributed to this historic decision. One must still ask if it would be wise to state the reasons publicly in all cases, as it may really open a Pandora’s box. Now, let the Collegium evolve a policy on transfers and, in the meantime, let us not doubt the wisdom of our top judges.

(The writer is Vice-Chancellor, NALSAR University of Law, Hyderabad)
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