Judge, Jury and the Master

By not appointing R. John Sathyan as judge of the Madras High Court but rushing through the appointment of Victoria Gowri this week, the government reasserted its ‘right’ to appoint judges at its own discretion, the collegium’s recommendation be damned. Ironically, the government has maintained the façade that the collegium is solely responsible for appointment of judges and for not filling up vacancies on time.

Sathyan’s name was recommended by the Supreme Court collegium in April last year and reiterated in January while Victoria Gowri’s name was recommended for the first time on 17 January 2023. What is more, the collegium specifically declared that Sathyan and other recommendations made earlier and reiterated by it should be appointed first. The government has chosen to ignore the advice.

So, who has primacy in matters of appointment, the collegium or the government? The ambiguities, feel several retired judges, need to be settled by a Constitution bench of five or more judges. The Memoran-dum of Procedure, which lays down the procedures to be followed and the time frames, also need to be affirmed by the bench, once and for all.

While lawyers seem divided, a vocal section feels the collegium failed to stand up for the judiciary’s autonomy and integrity when it dismissed challenges to Gowri’s appointment. The least it could have done, said senior advocate Sanjoy Ghosh, was to insist that Gowri be sworn in after Sathyan, because even if Sathyan is appointed now he will be junior to her, although his name was recommended a year earlier.

Constitutional Law expert Gautam Bhatia took a nuanced view in his blogpost while admitting that the system is indeed opaque but allows the government to retain the upper hand. The system is messy because unlike many other countries like the US, South Africa and Kenya, the recommendations become known after they are made, not before. In these other countries, the names are public knowledge before they are considered for judgeship, allowing public scrutiny. The candidates are also interviewed in public and asked to explain their past conduct.

In India the system is opaque as only the collegium and the government know who are being considered for appointment as judges.

The government had cited Intelligence Bureau’s report saying that R. John Sathyan had shared on social media an article in The Quint, which was critical of the Prime Minister while sending his name back for reconsideration. The collegium reiterated the name and pointed out that the IB report had also stated that Sathyan had no overt political affiliation. Holding political views and opinion, it said, was a right and not a disqualification.

Is it, therefore, even possible that IB would not have reported about Gowri’s political affiliations and alleged ‘hate speeches’ against Muslims and Christians? While it seems extremely unlikely, when the petition challenging her appointment was ‘mentioned’ before the Chief Justice of India this week, the CJI D.Y. Chandrachud said, “There are certain developments which have taken place. The Collegium has taken cognisance of what came to our notice and it was after our recommendation.”

Either the collegium did not do its homework, as retired Supreme Court judge Ashok Ganguly commented, or the government did not forward the complete report from the IB to the collegium—are the two possibilities that are still in the realm of conjecture.

Retired Supreme Court judge Madan Lokur, however, does not see the conflict as inevitable. Speaking to Karan Thapar for The Wire and Live Law last month, he conceded that there could indeed be differences between the collegium and the government, but nothing that could not be sorted out over a cup of tea. When he was part of the Supreme Court collegium, he recalled, they invited the then Union law minister Ravi Shankar Prasad to the Supreme Court. “He came and differences were resolved in that short meeting,” Lokur remembered.

Reacting to criticism that most judges are still upper caste males and from close-knit families of lawyers and judges, Justice Lokur wondered what prevented chief ministers from suggesting names of deserving lawyers from diverse backgrounds to the chief justices of high courts.

However, attacks on the collegium system have intensified in recent months with the Union law minister Kiren Rijiju harping on it at least once every month since the middle of last year. There has been a semblance of a pushback from the judges. But by all accounts, it is the political executive, the government, which appears to have more say in the appointment of judges, at least for the moment.

After all, the collegium had recommended senior advocate Saurabh Kirpal’s name for elevation as judge to the Delhi High Court as far back as in 2017. But the government has not only sat over the recommendation, it has ignored the collegium’s reiteration on January 17 this year, the day the collegium also recommended the name of Victoria Gowri.

The government had again relied on reports by IB and RAW to object to the recommendation. Kirpal, the agencies reported, had a foreigner (a Swiss national), as his partner. The advocate is not only openly gay but also passionate about LGBTQ rights, the agencies held. Brushing aside these objections, the collegium had reminded the government last month that homosexuality had been decriminalised by the apex court and could not be a ground for discrimination. Admitting his sexual orientation showed courage and did credit to the lawyer, the collegium held. Finally, several dignitaries including those who held or hold constitutional positions have had foreigners as spouse.

But despite the reiteration and the collegium’s insistence that the five names reiterated between 2018 and 2022 be given precedence over later recommendations, the government has thumbed its nose at the SC.

A Bench headed by Justice Sanjay Kishan Kaul on January 6 this year made the startling observation that the government was sending to the collegium its own list of names and “insisting on them”. The bench also pulled up the government for sitting on names recommended by the collegium for months without a word, reminding the Attorney General that names reiterated by the collegium are binding on the government.

“Delay not only affects the administration of justice but also creates an impression as if third party interests are interfering on behalf of these judges with the government,” the bench noted.

Retired Supreme Court Justice Rohintan Nariman described the delays as deadly against democracy. Delivering the MC Chagla Memorial Lecture last month in Bombay University, he said, “…What you are doing is you are waiting out a particular collegium and hope that another collegium changes its mind. And that happens all the time because you, the government, are continuous, you carry on for five years, at least. But the collegiums that come, have a huge attrition rate.”

While the government is clearly keen to have judges of its choice at all levels of the judiciary, since the government happens to be the largest litigant, how prudent or proper is it for the government to appoint judges? Can the government act as judge, jury and the prosecutor?

The process is messy, observes Gautam Bhatia in his blog. ‘When it approves of a candidate, it can rush the process through (as happened in the case of Gowri). In other cases, the government can exercise a pocket veto (which it has also done with respect to the Madras High Court, by refusing to appoint a judge in the teeth of an express direction by the collegium),’ Bhatia points out.