Markandey Katju’s accusations have served as a handy excuse for denigrating the judiciary and helping the Modi government to push the twin bills in parliament for scrapping the collegium system.
By Rakesh Bhatnagar
The controversy surrounding Gopal Subramanium exposed the frail framework based on which the center decides the integrity and merit of a judge recommended by the collegiums for high courts and the Supreme Court. The confidential inputs were given by the CBI and the secret information was fed by the Intelligence Bureau to which the Right to Information does not apply.
While rejecting Subramanium’s name for the post and damning his reputation, the government failed to point out that as additional solicitor general in 2007, he had filed an affidavit before the Supreme Court raising doubt on the historical existence of Lord Rama.
The government had to withdraw this affidavit to quell an uproar led by the BJP whose antipathy to Subramanium is well known.
Ironically, total reliance on the “premier” investigating agency and IB, which is not part of an investigating agency recognized by the Code of Criminal Procedure, goes against the fundamental principle of jurisprudence that until a person is held guilty by a court of law, he is innocent. Subramanium’s anguish was understood and his withdrawal of consent sent to the Chief Justice of India (CJI) RM Lodha came as a shot in the arm for the Modi government. The CJI-led collegium, which had recommended his name for the Supreme Court judge, was left with no option but to accept the government’s stand.
If the investigating agencies were so well equipped to determine the antecedents of an incumbent for the post of a high court or Supreme Court judge why they did they fail in finding facts about scores of judges manning the higher judiciary who are now alleged to be “black sheep”?
Frequent complaints keep pouring in alleging corruption in the higher judiciary. To give them due weight, Markandey Katju, a former judge of the Supreme Court who is now the Chairman of the Press Council of India, also keeps updating his blogs, adding more dimension to the corruption among judges and accusing some former chief justices of India of being soft on venal judges.
Katju retired in 2011 as a supreme court judge and has now been making rapidfire revelations which could land a person of lesser stature in the dock on defamation charges and damage the people’s confidence in the system.
However, these few instances have energized the Narendra Modi government to hasten the requisite constitutional amendment and constitute a commission for performing the job earlier being done by the collegiums since 1993.
When Chief Justice Lodha fired his first salvo, taking umbrage at what he described was the undermining of the independence of the judiciary and the collegium system, Law Minister Ravi Shankar Prasad precipitously withdrew the Judicial Appointments Bill 2013, moved by the UPA government, in the Rajya Sabha.
Prasad then moved two bills in the Lok Sabha where the BJP and its like-minded parties have a sound majority. These bills are National Judicial Appointments Commission Bill (NJAC), 2014, and the Constitution (121st Amendment) Bill.
While the Constitutional Amendment Bill scraps the collegium system and establishes a six-member body for the appointment of judges, the NJAC Bill lays down the procedure to be followed for appointment and transfer of judges. The CJI will head the commission and two seniormost judges of the apex court, two “eminent personalities” and the law minister will comprise the panel.
The composition of NJAC can be modified by parliament by an ordinary law. Second, the independence and impartiality of the proposed commission is feared to be undermined by its secretariat which is proposed to be a department of the government. Moreover, the expenses, salaries, allowance of the JAC would not be charged to the Consoli-dated Fund of India but will be dependent on the budgetary allocation by the FM.
However, all was not hunky dory before the collegium system came into being. Corruption in judges’ appointments did exist. The Law Commission in a report has already mentioned the appointment of “Uncle Judges” in high courts while recommending that judges, whose kith and kin are practising should not be appointed in the same high court.
Then on the Law Day, a bench of the then Justices Katju and Gyan Sudha Misra passed a judgment on November 26, 2010 in which Katju went to the extent of observing that “a lot of complaints are coming against certain Judges of the Allahabad High Court relating to their integrity”. Incidentally, Katju belongs to Allahabad.
“The wards or other relatives of the judge(s) who used to practise in the same court become multi-millionaires: have huge bank balances, luxurious cars, huge houses and enjoy luxurious life. The High Court really needs some house cleaning (both Allahabad and Lucknow Bench) and we request Chief Justice to do the needful including recommending transfers of the incorrigibles,” the Katju-Misra bench said.
Soon thereafter, the Allahabad High Court at its “full court” meeting took serious exception to such maligning observations and consequently it decided to file an application in the apex court praying for expunging such objectionable remarks.
Later, the Katju-Misra bench clarified its earlier order and stressed there are “excellent judges” too in high courts who are working hard and doing their duty honestly. The judges also stated they had not tarnished everyone with the same brush. “It is time for introspection rather than reaction,” they added.
However, the malaise that man-managed institutions inherit continue to threaten the foundations of an independent judicial system in India. Except stray instances like now when a former judge is regularly revealing the goings-on in the exclusive club of the collegium, the mechanism flourished under a thick pall of secrecy.
To say that the executive has little say in the appointment of judges would be a ridiculous proposition as the political class was often seen as being up in arms on the issue of removal of a judge on charges of corruption. Also caste, class and religion factors do play a role in approving the selection of a judge made by the collegium system.
One of Katju’s blog says that the telephone lines of certain judges he thought were corrupt had been tapped. The wire-tapping isn’t possible without the government’s aid. The judiciary isn’t equipped with its own investigation tools. If the various CJIs ignored his warnings and proceeded with either elevation or confirmation of judges, what were the home ministry and the prime minister’s office doing?
The downfall of the collegium system started with stiff-necked judges diligently keeping the institution away from the glare of the Right to Information, a law which was created after a apex court judgment in 2005.
It’s worthwhile recalling a proposal mooted by the Committee on Judicial Accountability (a voluntary body of some retired judges and like-minded lawyers) for setting up a full-time and independent body called the Judicial Appointments Commission (JAC) for the selection of judges to high courts and the Supreme Court.
Noted lawyer Prashant Bhushan, who founded this committee, says such a body could be constituted from among retired judges or “other eminent persons”. He said the collegium for the selection of chairman of the proposed body should comprise all judges of the top court and high courts.
The two members would be selected by judges while a third member by the union cabinet; a fourth by a collegium of the leaders of opposition of the two houses of parliament, along with the speaker of the Lok Sabha; a fifth member by a collegium of CEC, CAG
and CVC.
Bhushan says each of these members of the JAC would have tenure of five years and would thus be independent of the government as well as the sitting judiciary. This body would be mandated to function transparently and would have to publish the names of the persons shortlisted for appointment for the information and comments of the people, before the final selection.
Being a full-time body, it would also lay down the criteria for selection and would be mandated to go about its task in a structured and rational manner.
The efficacy of the new bills piloted by the Modi government would be known only after many more seasons.
The Modi government’s anxiety for replacing the collegium system is understandable. Against the sanctioned strength of 906 judges, there’s a deficit of 206 judges in the high courts. Of these many judges, some would naturally climb the ladder up to the Supreme Court. But the motive, observers suspect, is to increase the role of executive Big Brother in judicial appointments.
So for as Katju is concerned you your self has published in September 2014 issue that he him self has recommended the name of Justice B.S.Chauhan for the elevation to the judge of the Supreme Court ignoring numerous allegations against him as Allahabad High Court Judge and as such he has no right to raise finger over the Institution where he himself has started the malpractice and now he wants. …….