collegium | SabrangIndia News Related to Human Rights Tue, 01 Apr 2025 12:59:40 +0000 en-US hourly 1 https://wordpress.org/?v=6.2.2 https://sabrangindia.in/wp-content/uploads/2023/06/Favicon_0.png collegium | SabrangIndia 32 32 Potential of reasoned Collegium resolutions as a starting point for transparency in the Indian higher judiciary https://sabrangindia.in/potential-of-reasoned-collegium-resolutions-as-a-starting-point-for-transparency-in-the-indian-higher-judiciary/ Tue, 01 Apr 2025 12:59:05 +0000 https://sabrangindia.in/?p=40877 One way ahead out of the recent quagmire is for the higher judiciary, especially the Supreme Court to provide more reasoned public communiques on the decisions for appointments, transfers etc; though not the ideal solution, this would be a step forward

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On March 21, 2025–the Times of India broke a story on the alleged half-burnt cash piles found at Justice Yashwant Varma’s residential bungalow complex after a fire broke out on March 14. There was a good 7-day gap between the day of the incident and the mainstream reportage. Was the Times of India, when it broke the news to the nation, the first to take note of it? No. Who else knew?

Before The Times of India (TOI) broke the story, a series of crucial developments had already unfolded. By March 15, Chief Justice of Delhi High Court (CJ, Delhi HC) Justice D.K. Upadhyaya already had instructions from (CJI) Justice Sanjiv Khanna on what other details they needed. The following is established on the basis of Justice Upadhyaya’s report:

On March 16, Justice Upadhyaya met the CJI and reported the happenings reported to him. On March 17, Justice Upadhyaya met Justice Yashwant Varma and showed him the photos and videos of the purported cash, at which point Justice Varma expressed concerns that he was being targeted in a conspiracy.

On the morning of March 20, Justice Upadhyaya sent the images and videos to Justice Khanna. That same evening, Justice Upadhyaya was notified about the proposal to repatriate Justice Varma back to the Allahabad High Court, his parent High Court. Justice Upadhyaya endorsed the proposal, stating that it was in the interests of justice. It was only after these internal developments that the TOI publicly reported the story.

The Supreme Court on March 22 announced a three-member Committee comprising of judges from various High Courts that would conduct an inquiry into this incident. On March 24, the Collegium’s resolution to repatriate Justice Varma to Allahabad High Court was published.

This article is not to address judicial corruption, a well-documented issue with established theories on solutions(see here, here and here)—awaiting only implementation. Instead, it highlights how the outrage over the Justice Yashwant Varma fiasco is part of an ongoing erosion of judicial credibility, a concern rooted in legitimate issues. From appointing openly communal individuals as judges to failing to act against sitting judges who make communal remarks, the judiciary’s credibility and public trust have been in steady decline. Yet, the higher judiciary appears to be missing opportunities to restore it.

This article argues that the collegium’s resolutions must be more transparent and informative and striving for this transparency would be a crucial first step in rebuilding trust in the higher judiciary.

The issue: Context

The Collegium is one of the most powerful bodies in India today. Despite having no constitutional mention or statutory status, its power is such that it decides who gets to be a judge in India’s High Courts and the Supreme Court. The Collegium is not answerable to the executive or the legislature— a feature that it draws from one of the core principles of the Indian Constitution—independence of the judiciary. It consists of the Chief Justice of the country and four of the senior-most judges of the Supreme Court—a system in place since 1998.

The NJAC challenge and calls for transparency

In 2014, the NDA government enacted the National Judicial Appointments Commission Act, 2014 to replace the collegium system. A 5-judge bench of the Supreme Court in Supreme Court Advocates-On-Record Association & Anr. vs. Union of India ([2015] 13 SCR 1) declared the NJAC as unconstitutional with one judge—Justice Chelameswar dissenting.  Both the majority and dissenting opinions expressed the need for greater transparency in the process of judicial appointments.

After the judgement, and once he became a senior judge qualified to be in the collegium, it was reported that Justice Chelameswar refused to attend the collegium meetings since it was an opaque process. In 2017, to resolve the deadlock, the Collegium started to make public its resolutions during the tenure of CJI (as he was then) Dipak Misra.

While that process enabled the resolutions to be published, in December 2022, in the case of Anjali Bhardwaj v. CPIO, Supreme Court of India, (RTI Cell), (2022 SCC OnLine SC 1698), the Supreme Court held that held that unless any Collegium discussion culminates into a final decision, the discussion shall not be disclosed to public.

A study in 2022 stated that the collegium systematically failed to disclose critical information essential to an enhanced understanding of its functioning. The study stated that an overwhelming majority of its decisions are not reasoned and that the resolutions fail to provide a meaningful understanding of the considerations, based on which candidates are selected or rejected.

Except for a brief, considerable change during CJI (as he was then) DY Chandrachud’s tenure, the study’s findings hold true.

Collegium communications: A formality within a formality

Currently, the Supreme Court of India publishes Collegium resolutions on its website, offering a glimpse into its decision-making process, including, transfers and appointments of judges to higher judiciary. However, these resolutions often feel like a mere formality—followed more out of precedent than a genuine commitment to transparency. Why?

On March 24, the Supreme Court collegium’s statement was released on the repatriation of Justice Yashwant Varma to Allahabad High Court. It reads as follows:

“The Supreme Court Collegium in its meetings held on March 20 and 24, 2025 has recommended repatriation of Mr. Justice Yashwant Varma, Judge, High Court of Delhi, to the High Court of Judicature at Allahabad.”

If we did not have the Times of India story and had this resolution come out without the nation ever having the knowledge of the alleged cash, the public would have not known what had happened.

More broadly, when judges are transferred, the reasons are often unclear. Whether it is due to seniority, the interests of justice, or a particular skill being required elsewhere, there is little transparency in the decision-making process.

For instance, let us take the example of Justice Arindam Sinha on whose transfer the resolution was notified on the same day Justice Yashwant Varma’s transfer was notified, with similar resolution.

In May 2021, while serving as a judge at the Calcutta High Court, Justice Arindam Sinha strongly objected to the division bench led by Acting Chief Justice Rajesh Bindal treating a transfer petition filed by the Central Bureau of Investigation in the Narada scam case as a writ petition. He had also opposed the bench’s decision to stay the bail granted to four Trinamool Congress (TMC) leaders and its move to constitute a larger bench due to divergent opinions between the two judges. Later in September 2021 he was transferred to the Orissa High Court, and now he has been transferred again. We do not know why, in both cases.

Judicial transfers are a natural process, but what prompted this judge’s transfer to that particular court remains unknown. Justice Arindam Sinha’s transfers could well be routine, day-to-day adjustments, but the point to note here is that in the absence of official reasoning, the public is left to speculate.

If someone wants to rule out a few possibilities, they will likely have to track Justice Sinha’s seniority and see whether his transfer aligns with the seniority list. However, the Supreme Court is not bound to follow strict seniority in judicial transfers, and decisions can be made based on other considerations such as administrative requirements, institutional interests, or other factors.

A choice exercised at will

This nonchalant formality is not the case with all collegium resolutions. Some are more detailed; some are just a press note.

For example, in the resolution dated March 6, 2025 to appoint Justice Joymalya Bagchi as the judge of the Supreme Court, the SC has put out a two-page resolution. The resolution talks about the factors that have been taken into consideration, while appointing Justice Bagchi who stands at No.11 in the All-India Seniority list of judges, like the fact that Calcutta is represented by only one judge in the SC.

Has it always been like this?

Yes, but also no. During Chief Justice of India (as he was then) Justice DY Chandrachud’s tenure as CJI [9 November 2022 to 10 November 2024], the collegium resolutions were way more detailed.

For example, take the last collegium resolution during the tenure of Justice Chandrachud as CJI—a resolution regarding appointment of advocates as judges of the Bombay High Court. The resolution had details on consultation with judges over the candidacy, government inputs, professional experience and credentials, experience of those who were appointed. This was not some ideal-comprehensive format but was surely a different way than it had been done before.

However, as soon as Justice Chandrachud retired, the collegium resolutions more or less went back to being as they were, simple communiques of a very powerful body that, to this day answers effectively to no one. We do not know why. No one asked and no one cared to clarify.

Why is it necessary that collegium process is more transparently communicated?

Judicial independence stands as a fundamental pillar of any robust democracy, safeguarding the rule of law and ensuring that justice is administered impartially. Given the collegium system’s origin, the procedures and accountability mechanisms of the Collegium are not as firmly established as those of bodies with a clear constitutional or legislative basis, making it inherently susceptible to questions regarding legitimacy and openness.

The lack of transparency was one of the primary reasons for which Justice Chelameswar authored his powerful dissent in the NJAC case. Due to the Justice Varma incident, there is a renewed push by the ruling establishment for judicial reforms and a relook at the NJAC (See here and here).

The release of more detailed Collegium resolutions holds significant potential to address the criticisms levelled against the system’s opacity. Including the specific reasons for recommending a particular candidate, such as their demonstrated expertise in a specific area of law, notable judgments they have delivered, or their contributions to legal scholarship, would provide a much clearer understanding of the basis upon which the Collegium makes its selections. Explicitly stating the criteria that the Collegium considered for each appointment, going beyond generic terms like “merit and integrity,” would also enhance transparency and allow for public evaluation of whether these criteria are applied consistently across different appointments. While a verbatim transcript of the Collegium’s deliberations might indeed compromise the confidentiality necessary for frank discussions, providing a summary of the key perspectives considered and the rationale behind the final decision could offer valuable insights into the decision-making process. Furthermore, explaining the reasons for not recommending certain candidates (without necessarily disclosing their names if privacy is a concern) could help address concerns about fairness and potential biases within the selection process. In the context of judicial transfers, providing specific reasons beyond the vague “better administration of justice” would help dispel speculation and potential accusations of transfers being punitive in nature.

By moving beyond simply announcing decisions to providing clear explanations for the rationale behind them, more detailed resolutions would foster greater public understanding and potentially increase trust in the judicial appointment process. The fact that collegium resolutions were often detailed during Justice Chandrachud’s tenure suggests that the Collegium possesses the capacity to provide more comprehensive information and might be amenable to revisiting this approach. However, it should not come from a CJI’s prerogative since it can be discontinued by the next one. It must come from a set of rules which the Court as a whole writes for itself and follows.

For example, some have commended the CJI’s decision to put in public some material (albeit redacted to an extent) related to Justice Yashwant Varma’s case. However, the important point here would be to remember that instances of corruption have continued to persist and will do so, in the future. In that case, while commending the act of being transparent, the Supreme Court should also be called upon to arrive at a set procedure in these kinds of cases and make it transparent, if and when they arise in future.

Transparency inherently acts as a form of accountability, incentivising the Collegium to be more meticulous and reasoned in its decision-making process, knowing that their rationale will be made public and subject to scrutiny. Given that the judiciary often emphasises the importance of transparency for other institutions, a perceived lack of it within their own appointment process can be viewed as inconsistent, potentially undermining their moral authority in advocating for openness elsewhere. Public perception of fairness and integrity is paramount for the judiciary’s effectiveness.

Writing better collegium resolutions will not solve the issues with Collegium. They can only be solved by establishing an independent and transparent appointing body which is answerable to the people. While that might take time, this is within the powers of the Collegium and it should not let go off an opportunity to show that it too, can reform itself.

Why should they change now?

Simply put, the changes have to be made to make an effort at rebuilding the eroding public trust in the judiciary. Yes, people are scared of courts. No one wants a contempt order targeting them. However, is fear the tool with which the higher judiciary can sustain its stature in the Indian political scheme? Is it sustainable? It is not.

Sooner or later (now that it is already too late, therefore soon), someone—like George Carlin once did—will stand up and say, They’ve got the judges in their back pockets,” referring to how the closed door appointment systems and judicial corruption serve the rich and powerful. And when that happens, it would be too late to initiate a contempt proceeding against whoever says it.

Conclusion

While more detailed Collegium resolutions represent a significant step forward, relying solely on them might not be sufficient to achieve full transparency within the system. Even with increased detail, resolutions may not fully capture the nuances of the discussions and considerations within the Collegium or any informal consultations that might occur. The interpretation of broad criteria such as “merit” and “integrity” can still remain somewhat subjective, even if elaborated upon in the resolutions. The possibility of the Collegium tailoring the reasons provided in the resolutions to rationalize decisions already made cannot be entirely discounted. Furthermore, resolutions primarily focus on the final recommendations and might not provide insights into the initial stages of identifying potential candidates or the role played by High Court Collegiums in the overall process.

To further enhance accountability and openness, several other measures could be considered. Establishing clearer and more objective criteria for evaluating candidates, and making these criteria publicly available, would be a crucial step.

The judiciary has long defended itself from the executive wanting to control it. People of India supported the judiciary after they saw how it supported them from its decisions on Right to Education to its exceptional integrity in handling high profile matters involving influential politicians. It is this support that has given the higher judiciary its glorious decades. If the institution ignores the clear warning signs and resists reform, it risks losing its independence to an encroaching executive.

(The author is part of the legal research team of the organisation)

Related:

A Judiciary Made to Measure

Move towards Judicial transparency, Orissa HC evaluates own performance, lists challenges

 

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Serious times, grave challenges: India 2023 https://sabrangindia.in/serious-times-grave-challenges-india-2023/ Tue, 13 Jun 2023 12:35:28 +0000 https://sabrangindia.in/?p=27288 I suggest a new civic movement needs emerge with the aim of defending the Constitution and democratic institutions. Human rights defenders, activists and the people, who respect the Constitution should come to gather to fight to secure it to emerge victorious over the menace that hovers above us all.

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Post- Independence

The first years of Indian Independence were very fraught indeed. Jawaharlal Nehru became the prime minister and served for 16 years. Nehru promoted parliamentary democracy, secularism, science and technology during the 1950s. In January 1950 a new republican Constitution came into being. The Congress under Nehru’s leadership established a democratic Constitution and oversaw a series of mostly fair elections. Another great gift it gave to the people of India was the positive ideology of Hope.

The Congress of the 1950s and the1960s is best regarded as the school of democracy. During this period Indian people learnt to vote and speak their minds freely. They learnt also to craft and entrust independent, impersonal, rule-bound institutions such as the judiciary, the press and (not the least) the Election Commission. Thus, through the 1950s and 1960s, the specific contours of democracy and national unity were intensely debated in all parts of the country. Nehru’s Congress party won successive general elections from 1952 to 1962. Lal Bahadur Shastri became the prime minister after the death of Nehru in 1964 and on his death in January 1966 Indira Gandhi became the prime minister.

Congress under Indira Gandhi

The 1967 general elections, which were held under the prime ministership of Indira Gandhi, cut the Congress’s majority in the Lok Sabha to twenty five, it lost 264 seats in state assemblies and its majority in 8 states.

Till the 1967 the elections of the Parliament and all the State Assemblies used to be held simultaneously and much money was not required to contest election. Politics was an instrument of service. The elections used to be contested on ideologies of political parties. In 1967 elections Congress suffered reverses as a result of anti-Congress wave. It started becoming apparent that in the next elections, which were due in 1972, the Congress Party was bound to lose power in the Centre and many states.

In 1969, Indira Gandhi split the Indian National Congress into two: the one led by Indira Gandhi came to be known as Congress (I), and the other which comprised the then stalwarts in the Congress, came to be known as Congress (O). In 1977, the Congress (O) merged into the Janata Party and thereafter ceased to exist.

In 1971, Indira Gandhi, politically shrewd as she was, was fully able to sense the impatience in the people about removal of poverty, gave a deceptive slogan of ‘garibi hatao, delinked the parliamentary and the assembly elections, surprisingly, by preponing the same, which otherwise were due in 1972. She utilised a large amount of money in elections for her party candidates and secured a thumping majority, giving a severe blow to the process of political polarisation on an ideological basis. She secured 352 seats in the Lok Sabha in these elections. A series of events since  1971  finally led to the destruction of the Babri Masjid in Ayodhya on the December 6, 1992 demonstrate that both the major political parties-the Congress and BJPhave shown little regard for the rule of law and the country’s judicial institutions.

Both the said parties wanted judiciary to be weak and have been making attempts to make the Court obedient to their governments, both unbalanced the power equations among the three branches of the state. Both the parties also wanted to change the basic structure of the Constitution. Mrs. Gandhi’s government superseded the three senior most judges of the Supreme Court for their ruling in Kesavanand Bharati case, laying down the basic structure doctrine.

During the years, 1971-77 Mrs. Indira Gandhi ruled the country in an authoritarian way. The date, March 23, 1977 is regarded as the day of India’s liberation from authoritarianism as on that date Mrs. Indira Gandhi had lifted the Emergency. In 1977 elections Mrs. Indira Gandhi suffered a crushing defeat and for the first time a non-Congress government of the Janata Party came into power. The Janata Party government could not survive on account of its internal contradictions and in 1979-80 mid-term elections of the Lok Sabha were held. In these elections Indira Gandhi secured majority votes.

Rajiv Gandhi’s Congress and India

The danger of authoritarianism reappeared with the success of Mrs. Gandhi in the post-Emergency elections of 1979-80. In 1984 Mrs. Indira Gandhi was assassinated. Thereafter, Rajiv Gandhi was sworn in as the next prime minister for only two months. In the 1984 elections, in which Rajiv Gandhi had a clean sweep, BJP could secure only 2 seats in the Lok Sabha. The Sangh Parivar started a campaign for the construction of a magnificent Ram Janam Bhoomi Temple at the site of the Babri Mosque and by 1985 built up a sizeable support in the Hindu community. In January 1986, the locks of the 450 year old Mosque were opened and “Ram bhakts” were permitted to offer prayers to “Ram Lala”. It is said that the Prime Minister Rajiv Gandhi’s aide and minister Arun Nehru ordered the Chief Minister Veer Bahadur Singh to ensure that the district administration do this. Thus, in this period, both these parties, the BJP and the Congress, started pandering to communal Hindu sentiments. By 1988, Hindutva organizations led by the RSS organised a mass campaign for building a grand temple exactly where the Mosque stood. They claimed that the Mosque stood at the precise site where Lord Ram was born. By the time  the fifth and the final suit was filed on July 1, 1989 and all the five suits were transferred to the High court to be tried by a Full Bench by order dated July 10, 1989, the political climate had changed beyond recognition.

Union Home Minister Buta Singh signed an agreement with the VHP on the August 17, 1989, to the effect that bricks for constructing the temple would be allowed to be brought from all over the UP without hindrance and collected at plot No. 586 near the Mosque. This agreement was in violation of an order of the Allahabad High Court dated August 14, 1989 that stated that no construction activity could be taken at that spot.

Later, the VHP announced that ‘kar sewa‘would be performed to lay the foundation stone. This was also a violation of the judgment given two days ago, prohibiting any such activity. This repeated defiance of the orders of the court did not weigh with the Prime Minister, Rajiv Gandhi, who inaugurated the campaign of the Congress party the next day from the twin city of Faizabad, and announced, moreover, that the objective of the Congress party was to establish Ram Rajya. Soon thereafter the BJP president Advani at Palampur, after the National Executive Meeting, announced that the inclusion of the construction of the temple in its Election Manifesto “would fetch votes” for it. It would thus appear that the two major political parties were in a race to the finish on this issue.

The race between the two was lost by Rajiv Gandhi and won by L.K. Advani. The next elections were to be held in 1989. The Congress could secure 197 seats only as compared to 404 seats in 1984, and the BJP got 85 seats as compared to only 2 seats in 1984. Thus a non-Congress government came into being in 1989.

The masculine, militaristic, ultra-Hindu nationalism, which is being propagated by the BJP and the Sangh Pariwar, represents a far greater danger to the Indian democracy than the personal authoritarian rule which Mrs. Indira Gandhi imposed on the country. The movement for the construction of a Sri Ram Temple by destroying the Masjid was clearly a movement for encouraging Hindus to humiliate Muslims. The main reason why the Babri Masjid was destroyed on December 6, 1992 was that the Narasimha Rao government at the Centre did not like to take any firm action against the so-called Kar Sewaks because it was reluctant to alienate Hindu votes.

Looking back, we find that the people of this country had an urge to participate in the political process. This was evident in the elections that took place till 1967, and then in 1977. Until this time, a common man could hope to get elected, because until then, electoral politics had not come in the vicious grip of casteism, communalisation and criminalization. It was in 1989, when the fifth suit was filed and all the suits were transferred to the High Court that the poll politics came in the vicious grip of casteism, communalisation and criminalisation.

Ayodhya Judgement 2019

The controversial judgment in the Ayodhya case by the Supreme Court was delivered on November 9, 2019. By now, the Union Home Minister Amit Shah has declared the construction of the temple would be completed by the January 1, 2024. That means that the issue would be used in parliamentary elections as an “achievement” and claim that the grand Ram temple has been built due to their efforts. The BJP thus is still keeping the issue of Babri Masjid alive, but Congress is now out of the race.

The Constitution Bench which decided the Ayodhya case comprised of Chief Justice Ranjan Gogoi, Justice Bobde, Justice S. Abdul Nazeer, Justice Ashok Bhushan and Justice D.Y.Chandrachud. Chief Justice Ranjan Gogoi has been nominated as Rajya Sabha member, Justice S.Abdul Nazeer has been made a Governor within a month of his retirement and Justice Ashok Bhushan is currently the Chairperson of the National Company Law Appellate Tribunal.

Independence of the Indian Judiciary

The judgment in the NJAC case came on October 16, 2015. Unfortunately, till N.V.Ramanna took over as the Chief justice of India, at least four of his predecessors were perceived as standing with the government, even when the fundamental rights and civil liberties of the people were under attack and dissent was being suppressed under the UAPA and the draconian law of sedition. It was only after Justice Ramanna took charge that some faith in the judiciary was restored. During his tenure, Supreme Court agreed to revisit the sedition law and urged the government to refrain from lodging FIRs under the said laws.

Justice U.U. Lalit, who had a tenure of less than 3 months, made sincere efforts to bring about the much needed reforms in the listing of cases with a view to ensuring that important cases no longer remained on the back burner and were heard expeditiously.  The present Chief justice of India is known for his commitment to Fundamental Rights and Civil Liberties of the people.

A “Committed” Judiciary

The present government had no problems with the Supreme Court so long as it was docile and was by and large toeing its lines. But now fearing a more assertive court, the esrstwhile Union Minister of Law and Justice (Kirin Rijiju) and the Vice President (Dhankar) find the collegium system of appointment of judges to the High Courts and Supreme Court “opaque and not accountable.” The former Law Minister, Kiran Rijiju, has also questioned the court’s order putting the sedition laws in abeyance.

When the Modi government was formed in 2014, they announced that the appointment of judges by the collegium should go. With this objective, the NJAC Act 2014 was enacted. Its validity was challenged.  The Supreme Court declared the NJAC Act and the consequential amendment to the Constitution as unconstitutional on the ground that it was against the judicial independence and thus contrary to the basic features of the Constitution. The Court did what it is ordained to do under the Constitution. Nothing more nothing less.

Most politicians, while in power, are allergic and intolerant to an independent judiciary. It requires a politician to rise to the level of a statesman and a visionary to understand how vital an independent judiciary is to the functioning of a constitutional democracy. Authoritarian regimes want that the judiciary should be executive-minded. Indira Gandhi also wanted to have a committed judiciary. ‘Committed’ here means committed to the executive.

The re-emergence of Indira Gandhi after her authoritarian and personal rule, especially between 1972 to 1977, started after 1979-80 elections when Indira Gandhi defeated the Janata Party in the elections.

Granville Austin in his book ‘Working a Democratic Constitution’wrote  “During January 1980 Justice Bhagwati wrote  ‘Dear Indira ji’  letter to the Prime Minister congratulating her on her election and praised her  ‘iron will…..uncanny insight and dynamic vision, great administrative capacity and…… heart which is identified with the misery of the poor and the weak’. The justice continued that: “  The judicial system in our country is in a state of utter collapse. We should have a fresh and uninhibited look at [it]… and consider what structural and jurisdictional changes are necessary. …….”

The unfinished task of having a ‘committed judiciary’ which Mrs. Gandhi wanted to accomplish during 1971-77 was completed on her re-emergence with the help of the judgment of a constitution bench of the Supreme Court headed by Justice Bhagwati in the S.P Gupta case. In that case, known as the First Judges case, the Supreme Court appeared virtually to surrender itself to executive power exercised through the President. According to the decision in the First Judge case, under the Constitution the prime responsibility for the appointment of judges was upon the executive, which meant the executive government and opinion of the executive government was to prevail over the views expressed by the Chief Justice of India. The position of the Chief Justice of India in the matter of appointment of judges was reduced to a nullity. ‘Consultation’ meant little more than passing on information and definitely did not imply consent. The S.P Gupta case judgment was delivered on  December 31, 1981 and it continued to hold the field for about 12 years, up to October 1993, when the judgment in the Second Judges case was given.

Collegium is Supreme

Thanks to the Second Judges case, the Supreme Court, realising the grave error committed in the First Judges case, virtually reversed the judgment in the case holding that the judiciary shall have supremacy in the matter of appointment of judges, and not the executive.

The Third Judges case arose out of a reference made by the President under Article 143 (1) of the Constitution as it was thought that the decision in the Second Judges case created some complications. The questions posed by the President were answered by a unanimous opinion of five Judges of the Supreme Court. (Judgment delivered by Bharucha J). The ultimate effect of the Third Judges case at the end of the day was the substitution of a collegium of five judges instead of three that is to say, the Chief Justice and the next four senior most judges. With these judgments the Congress Party finally gave up the issue of appointment of judges and assertion of the power of the executive.

More recently, under the Modi 2.0 regime, Vice President Jagdeep Dhankhar   sparked a debate on the separation of powers between the executive and the judiciary. He criticised the Supreme Court  for using the doctrine of basic structure to strike down the constitutional amendment that introduced the National Judicial Appointments Commission Act. On December 7, 2022, in his maiden speech in the Rajya Sabha, Dhankar called the striking down of the NJAC Act a “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”. It is well-known that in the constitutional scheme of things in India, there is no such thing as the parliamentary sovereign’. If at all it is, it is the ‘constitutional sovereignty’, though we often talk of national sovereignty, which is correctly said. The law minister had also written to the Chief Justice of India seeking government representation in the collegium.

The law minister and the vice president questioned the judgment of the Supreme Court which came to be known as the Kesavanand Bharati case. The said judgment was delivered 50 years ago. In this judgment the court has held that while Parliament has the power to amend the Constitution, it does not have the power to amend its basic structure. It was and is held as one of the finest judgments delivered so far.

Both the erstwhile law minister and the vice president have attacked the basic structure doctrine not only to challenge the NJAC case but for more sinister design. The BJP really wants to change the basic structure of the Constitution, The BJP, for example is against the words ‘secular’ in the Preamble of the Constitution. Although this word was not in the Constitution, as it stood initially, it was inserted in the Preamble by the 42nd Constitutional Amendment Act. The BJP does not want that India should remain a secular country. They want that the word ‘secular’ be omitted in the Preamble of the Constitution, facilitating the declaration of India as Hindu state.

It is worthy to note here that Chief Justice Sikri and Justices Shelat, Grover and Khanna had declared secularism as one of the basic features of the Constitution even before the Forty-second Amendment, by which the word ‘secular’ was inserted into the Preamble of the Constitution. That the ‘secular’ nature of the Constitution is one of its basic features has subsequently been emphasised in innumerable cases.

Subsequent to the Kesavananda Bharati case, the Supreme Court made occasional exploratory searches to identify the basic features of the Constitution. In Kesavananda Bharti case itself, Chief Justice Sikri enumerated what he considered were some of the basic features of the Indian Constitution:

1) supremacy of the Constitution;

2) republican and democratic form of government;

3) secular character of the Constitution;

4) separation of powers between the legislature, the executive and the judiciary;

5) federal character of the Constitution.

Illustrating the statement that the basic structure of the Constitution could not be altered, Khanna J, said:

“It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the State according to which the State shall not discriminate against any citizen on the ground of religion cannot likewise be done away with.”

In State of Rajasthan v. Union of India, independence of the judiciary, judicial review, and separation of powers were held to be the basic features of the Constitution.  This was reiterated in Subhash Sharma v Union of India, by a seven-judge Bench.

India 2023

Now let us discuss the present political scenario. The present political parties have no will or capability to think beyond the centralised system of governance. They are incapable to maintain the integrity of the Constitution and its secular character, and their calculated political actions towards weakening the key democratic institutions are ruinous.

I suggest a new civic movement must emerge with the aim of defending the Constitution and democratic institutions. Human rights defenders, activists and the people, who respect the Constitution should come to gather to fight to secure it.

A people’s movement should be developed on a non-party basis against the present government’s anti-constitutional policies, tactics, governance, ultra-Hindu nationalism of which is the main tool. And it can be done. Such endeavours have already started in the country. Bharat Jodo Abhiyan is one of them.

A large number of persons, who are in the non-government organisations  (NGOs), and who believe in democracy and secularism, and who are determined that India must never turn a theocratic or semi-democratic state, have  joined the Bharat Jodo Abhiyan. A few of such persons are:  Yogendra Yadav, Prashant Bhushan, Admiral Ram Das, Ram Puniyani, Medha  Patkar, Amol Palekar, Irfan Engineer, Nikhil Ray, P.V.  Rajagopal, Pooja Bhatt, Sunilam, Gauhar Raza, Shabnam Hashmi, Professor Anand Kumar,  Kumar Prashant, Prof. Shekhar Pathak, Kavita Srivastava, Ajit Bhuian,  Manoj Kumar Jha, Prahlad Tipania, Ashok Kumar Pandey, Rajeev Dhyani, Bhanwar Meghwanshi, Dr Subhash , Surendra Pal Singh, Ramchandra Rahi, T.M. Krishna,  Roop  Rekha Verma, S.P. Kumar and  Justice Kolse  Patil.

It is timely now that we talk a bit of Rahul Gandhi, who has of now generated some hopes and expectations for the better of the Indian democratic scenario and who is for  long unleashing unrelenting attacks on the ultra-nationalism, crony capitalism, and who is delivering hammer-blows to the Indian government’s  present fascistic policies, tactics and aims.

Rahul Gandhi was only 20 years of age when his father Rajiv Gandhi was assassinated in 1991. He came into active politics sometime in 2004 when Atal Bihari Vajpayee was the Prime Minister of the NDA government. In 2004 elections nobody expected that NDA would not return to power.  A significant political scenario emerged after the Lok Sabha elections of 2004. After years of sheer disgust and frustration with the system, which the Indian polity had remained plagued with, the unexpected poll   results had revealed that the voters had finally delivered a hard blow to the high profile politics, based on emotive communal divide, which had literally dumped the basic issues into the dustbin of electoral politics.

Rahul Gandhi had just entered the politics when his mother, Mrs Sonia Gandhi in 2004,  delivered a master stroke, either guided by strategic reasons or out of  a sense of sacrifice, when she refused to become Prime minister of India and instead nominated Dr Manmohan Singh as the prime minister. During the prime minister ship of Dr Manmohan Singh there were large-scale violations of human rights. In 2009 drastic amendments in the UAPA were made under which human rights activists remained in jails for a long period of time. Rahul Gandhi did not join the government after the Lok Sabha elections of 2004 and 2009.

In the 2014 and 2019 elections, the Modi government remained in power. During this period, there was virtually no opposition in the Lok Sabha. A group of senior Congress leaders, known as G-23, weakened the Congress further. The situation resulted in Rahul Gandhi and his mother remaining as the main leaders of the Congress.  Unlike his father Rajiv Gandhi, who was sworn in as the Prime Minister on the death of his mother Smt. Indira Gandhi for a short period of a month but who, in the general elections that followed (December 1984), enjoyed a clean sweep.

Unlike his father, Rajiv, Rahul Gandhi has had to compulsorily remain in politics and he has consistently kept raising people’s issues as the Leader of Opposition.  For 2024 elections it became necessary for him to have the Bharat Jodo Yatra. The aim of this yatra was to unite India and come together to strengthen our nation.

The yatra began on the September 7, 2022, from Kanyakumari to Jammu and Kashmir spanning a distance of 4000 kms over the course of about 136 days. The yatra received an overwhelming response: lakhs of people have joined the yatra to raise their voice against the economic, political, social issues that are afflicting our nation today. The yatra sought to address rampant unemployment and inflation, politics of hate and division, and over centralisation of our political system.

People from all walks of life came together to be a part of this historical movement. After Bharat Jodo Yatra a Bharat Jodo Abhiyan has been launched on the 6th February 2023 in which about 600 people participated came from around the whole country.

The draft resolution for National Convention of Bharat Jodo Abhiyan says:

“Today We the People of India embark upon a mission, a seven year long journey, to defend the future of India. Today we launch a movement, the Bharat Jodo Abhiyan, that can reclaim our republic, renew our Constitutional values, rescue our democratic institutions and rekindle the spirit of our freedom struggle. A movement of resistance to the unfolding assault on our Constitution, our nationalism, our civilization – indeed, the very idea of India. A movement of national reconstruction that extends its horizon from helping political change to fostering socio-cultural change and indeed combating climate change, that offers a credible hope to secure the constitutional promise of justice, liberty, equality and fraternity for every Indian.

“We are a group of citizens who have worked with various peoples movements, voluntary organisations and political formations. Many of us have participated in the historic Bharat Jodo Yatra from Kanyakumari to Srinagar, from despondency to optimism, from keeping quiet to expressing ourselves, from finger pointing to taking personal responsibility and from apolitical stances to explicit assertion of our political role as citizens. The unprecedented success of this yatra places an extraordinary responsibility on everyone who shared this journey with their body, mind or soul. We launch Bharat Jodo Abhiyan to fulfill this responsibility, to exercise our right to protect our hard won freedom and to discharge our sacred duty to defend our Constitution.”

It seems to me, nay,  my belief  is, that the menace that is hovering over our Constitution is very real, and very serious, and ignoring the same would tantamount to ignoring the imminent dangerous changes that may be effected not long before in India’s civilisation and cultural fabric and firmament.

In these circumstances, the immediate role, and response of, “WE, THE PEOPLE OF INDIA”, would decide at the end of the day whether we survive as a secular, federal, republican nation? Only our response to the situation would determine whether the gains and achievements that we earned through thousands of years of continual struggles and odyssey survives or are destroyed.

(The author is a senior advocate and national president of People’s Union for Civil Liberties- PUCL)

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79% of High Court Judges Appointed Between 2018-2022 Upper Castes: Law Ministry https://sabrangindia.in/79-high-court-judges-appointed-between-2018-2022-upper-castes-law-ministry/ Tue, 10 Jan 2023 04:51:48 +0000 http://localhost/sabrangv4/2023/01/10/79-high-court-judges-appointed-between-2018-2022-upper-castes-law-ministry/ The figure comes from a Ministry report aimed at highlighting how the collegium has not been successful in ensuring diversity in the appointment of judges. Representational Image. Image Courtesy: iStock According to Indira Jainsing, in an article written on December 26 for The Leaflet, “The Supreme Court faces an existential crisis in the face of the attack […]

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The figure comes from a Ministry report aimed at highlighting how the collegium has not been successful in ensuring diversity in the appointment of judges.

UP: Agra Lawyers Deny Legal Help to Sedition-Charged Kashmir StudentsRepresentational Image. Image Courtesy: iStock

According to Indira Jainsing, in an article written on December 26 for The Leaflet, “The Supreme Court faces an existential crisis in the face of the attack it is facing under the ruling dispensation. It is now more than obvious from the speeches made by the Union Law Minister and the Vice-President that the Collegium is under attack. While the system requires bearing in mind the need for diversity of judicial appointments, surely the cure is worse than the disease.”

In such a background, as per A report published in The Times of India (TOI), the issue of the unequal representation of backward and minority communities in the higher judiciary is evident from the fact that 79% of all high court judges recruited in the last five years (2018-2022) are from upper castes is making headlines in media reports. According to TOI reports, the shocking figures have been revealed by the Union Law Ministry in a presentation before a parliamentary panel.

The Law Ministry made the above disclosure before the Parliamentary Standing Committee on Law and Justice and pointed out that despite three decades of the existence of the collegium system of appointment of judges, the social diversity in the higher judiciary, which was initially devised by the Supreme Court, is completely missing in these appointments.

This fact is shocking to all that the appointments made in the 25 High Courts of the country are mostly from the upper castes. It refers to “discrimination” in appointments to the institution, with the Other Backward Classes (OBCs), who account for more than 35% of the country’s population, accounting for less than 11% of appointments to benches and seats in constitutional courts.

Another aspect of this alleged discrimination is that of the total 537 judges appointed to the High Courts since 2018, only 2.6% have been appointed from the minority community. Similar is the story of the Scheduled Castes and the Scheduled Tribes, ranked at 2.8% and 1.3%, respectively.

According to the Law Ministry, “Addressing the issue of social diversity and social justice in the process of appointment to constitutional courts is the primary responsibility of the Supreme Court Collegium and the High Court Collegium.” 

The Law Ministry, while stating the above position before the panel, expressed its helplessness and said that priority had been given to the judiciary in matters of appointment of judges. Therefore it needs to be addressed by the judiciary itself. 

A collegium of judges functions at two levels – the Supreme Court and the High Courts. While the 4-member Supreme Court collegium, headed by the Chief Justice of India, prepares proposals for appointing judges to the apex court, the 3-member Collegium of high courts, headed by chief justices, recommends the names.

Through letters to the Chief Justice and Chief Justices, the Law Ministry has stressed the need to “address the issue of social diversity and social justice” in the higher judiciary. In its presentation before the Parliamentary Standing Committee on Law, it noted that the primacy of the Collegium in the appointment of judges had not removed the existing disparity. It states, “The government appoints only those people as judges of the Supreme Court and High Courts, who are recommended by the respective Court Collegium.”

The Ministry, however, has also clarified that the principle of appointment of High Court Judges, as per Articles 217 and 224 of the Constitution, “does not provide for reservation for any caste or class of persons. It has been urging the Chief Justices that while sending proposals for the appointment of judges, due consideration should be given to suitable candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities and women to ensure social diversity.

Whenever the Supreme Court Collegium sends recommendations, the Law Ministry examines them, and the Intelligence Bureau conducts a background check of the recommended candidates, and then a detailed report including the High Court Collegium’s recommendations is sent to the Supreme Court Collegium for their advice. Then after the names are cleared by the Supreme Court collegium, the central government notifies the appointments.

In case of disagreement between the government and the apex court, the government sends back such names to the SC collegium for reconsideration. But once the SC collegium reiterates the same name, the government is bound to appoint that person as a judge per the existing collegium system.

SITUATION SIMILAR IN OTHER INSTITUTIONS

This situation is present not only in the courts, where there is no reservation provision. The situation is more tragic in those institutions where reservation exists for the disadvantaged sections. It is the constitutional responsibility of the institutions to fill vacancies in these sections. For example, in the case of AIIMS, out of 1,111 faculty positions, a total of 275 positions for assistant professors and 92 positions for professors lay vacant. However, following media reports, the Parliamentary Committee stated in its report that despite being qualified, competent and experienced reserved category doctors were not being appointed to faculty positions.

A similar case was also found in the media. A report released by Oxfam India-Newslaundry showed that upper-caste people hold 90% of top media positions in India. The shocking fact is that not a single dalit or adivasi is not part of the mainstream media leadership.

From the above facts, one can guess that discrimination against dalits/tribals is institutional and systematic, but minorities and other backward classes are also victims of it. Even in the ‘golden age of independence’, these sections are fighting for their existence, and the funny thing is that no one is listening.

Courtesy: newsclick.in

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Centre must not segregate collegium resolutions, Supreme Court should be firm against the executive for sitting over proposals: Justice MB Lokur https://sabrangindia.in/centre-must-not-segregate-collegium-resolutions-supreme-court-should-be-firm-against/ Wed, 12 Oct 2022 10:15:20 +0000 http://localhost/sabrangv4/2022/10/12/centre-must-not-segregate-collegium-resolutions-supreme-court-should-be-firm-against/ With another looming controversy afoot, with the Modi 2.0 government not acting on the Collegium’s recommendations transferring Justice Muralidhar from chief justice of the Orissa high court to chief justice of the Madras high court, Karnataka, Justice Lokur makes requirements of the practice very clear

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Lokur

Former Supreme Court judge Justice Madan B Lokur opined that the Central Government is not entitled to selectively pick and choose names by segregating resolutions made by the Supreme Court collegium. He also stated that that it is unfair on the part of the Centre to keep certain collegium proposals pending.

The retired Supreme Court judge was speaking in an  interview with Manu Sebastian, the Managing Editor of LiveLaw, on the topic of judicial appointments. Responding to a query regarding the recent trend of Centre selectively keeping certain proposals pending, Justice Lokur said :

“There are rumours of speculations as to why the government is taking so much of time, why are they taking up some and not the others. Is there some kind of favouritism, nepotism? Why is all this such a big secret? You have heard cases right here in Delhi where names have been sent, two people were picked up and other six were not picked up and two of them were appointed. Then after that, another four were appointed and two were not appointed. And then after that, another two were appointed. Why? Chief Justice Lodha had said at one point of time that don’t segregate the names. What is actually being sent is one recommendation which consists of five names or 10 names. There is a reason for the order in which they are sent, the order could be seniority or probably the date of registration as a member of the bar Council. Now you disturb that because you segregate. That is like telling the collegium that ‘listen, we don’t care what you think, we will do what we think and there is nobody to question’. The Supreme Court collegium is to then keep quiet and says that ‘okay, you are entitled to segregate’. No, but you’re not entitled to segregate! It is one recommendation. You either accept it in the full, defer it in the full or reject it in the full . It affects the overall seniority of the person, don’t piecemeal to pick up one person from here or there, it gives rise to rumours and speculations. Why should that happen?”

On Centre sitting over collegium resolutions

Justice Lokur also sharply criticised the practice of the Centre sitting over collegium resolutions. He noted that certain names which have been reiterated by the collegium more than once have been ignored by the Centre, although as per the judicial precedent, the collegium reiterations are binding on the executive. Even when the names are returned, there is no way to know the reasons.

“If the government tells the Supreme Court collegium that we are returning these names for reconsideration or whatever, why are they sent back? Do we know? Except speculation, not even speculation, there is no way to understand why they are returning the names. You can’t even speculate on that. The Supreme Court then sends it back, reiterates the name. The government sits on it for months all together, in some cases, for years together. Why are we not entitled to know these things? Is this the way the government wants to treat the Supreme Court of India- that ‘we don’t care what you recommend, we will do what we want’? Should we tolerate this, should we accept this? Can they say that ‘Supreme Court, you can say whatever you want, but we will do what we want, we don’t care’? I don’t think that is fair to the judiciary, I don’t think that is fair to the justice delivery system, to the institution, to the country that you treat our Supreme Court in this manner. You can’t treat the Supreme Court in this manner, let’s be clear about this”.

The rest of the interview on LiveLaw may be read here

Before this most recent controversy over the government deliberately sitting on the recommendation of the collegium on Justice Muralidhar, another judge with impeccable credentials had received similarly cavalier treatment by this government.

Justice Kureshi was also in line to become the Chief Justice of the Madhya Pradesh High in 2019, on the recommendation of the Supreme Court collegium, but the Centre returned his file. On May 10, 2019 the Supreme Court in its resolution had said, “Mr. Justice A.A. Kureshi is the senior-most Judge from Gujarat High Court and at present is functioning, on transfer, in Bombay High Court. Having regard to all relevant factors, the Collegium is of the considered view that Mr. Justice A.A Kureshi is suitable in all respects for being appointed as Chief Justice of the Madhya Pradesh High Court. The Collegium resolves to recommend accordingly.” Again, then as now, the Centre, flexing its muscles over the judiciary, refused to yield to the Collegium’s recommendation.

Related:

Who is Justice Akil Kureshi?

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