With the news coming of the move in the Supreme Court collegium to transfer S. Muralidhar, a Justice who used stringent comments while convicting Congress leader Sajjan Kumar in case of 1984 riots and UP PAC in Hashimpura verdict, there are possible chances of debate over the legitimacy of the collegium itself.
Article 50 of the Indian Constitution clearly says that there should be a separation of powers between the Executive and the Judiciary. The same has also been coined in the ‘basic structure doctrine’ of the Indian Constitution introduced in Keshavananda Bharti Case. Article 124 (2) and Article 217 clearly detail the appointments of Supreme Court Judges and High Court Judges respectively.
Despite the presence of such provisions, there has been a tussle between the Judiciary and the Executive since the pre-Emergency period, when AN Ray was appointed as Chief Justice of India superseding three senior most justices. Before 1981, the Primacy of President, in appointment of Judges, used to prevail but later in the 1982 first judges’ case, Supreme Court ruled that the “consultation did not mean concurrence.”
However, in the 1993 (Advocates on record association) second judges’ case, a nine-justices bench, with a majority of seven, overruled the previous judgement of the Supreme Court, thereby binding the President to accept the advice of the CJI. In 1998, Supreme Court strengthened the panel of two judges by increasing its strength upto 4 led by CJI. A panel which was called Collegium was created.
Later, Venkatachaliah Committee suggested the creation of National Judicial Appointments Commission (NJAC) in 2002. This was initially taken up by the UPA government to replace Collegium and finally brought in by the NDA through the 99th Amendment. However, it was drastically termed as ‘unconstitutional‘ by the Supreme Court in 2015 citing Article 50 i.e. ‘separation of Executive and Judiciary’ and government’s efforts to rob over the Primacy of CJI led Collegium in appointing judges.
While on the one hand Supreme Court is known for transparency and its straightforward, outspoken nature, the collegium appears to be opaque and dusky. Recently, Justice Dinesh Maheshwari, CJ of Karnataka High Court and Justice Sanjeev Khanna, a Justice of Delhi High Court were elevated in the Supreme Court amidst much debate. Earlier, in the collegium meeting on December 12, of which Justice Madan B Lokur who now retired, was a member, the names of Justice Pradeep Nandrajog and Justice Rajendra Menon (Chief Justices of Rajasthan and Delhi High Courts respectively), were decided. But Sanjeev Khanna has been finally appointed superseding three senior judges along with Justice Dinesh Maheshwari.
According to 1993 judgement, “unless there be cogent strong reason to justify a departure, the order of [inter-se] seniority [amongst judges of High Court] must be maintained while making their appointments to Supreme Court.”
So, should there not be any cogent reason behind elevation of Justice Sanjeev Khanna and if there is any, then why should it not be made public while breaching the set convention of appointment? It is time for us to question the reasonableness of the collegium’s arbitrary decisions.
The blurriness of the collegium accompanied by the absence of written manual of framework, selection criteria, reversing the decision of its own and selective publication of records of meetings on the Supreme Court’s website constrains me to say that there should be total transparency in the methods of working of Collegium, and the Authoritarianism in the name of Independence of Judiciary should stop soon.