Justice Chelameswar: More transparency needed while selecting judges

Emphasising that there needs to be more transparency and records of meetings maintained in the case of the appointment of judges to the Supreme Court, Justice J Chelameswar said on Monday, that an assessment of the performance of a judge is hardly done and “most go by impressions”. “If there is a little more transparency and each of the bodies involved in the process placed their observations on record, then it would eliminate most of such problems,” pointed out Justice Chelameswar.

“The Collegium has recently decided to have an interaction with those considered for the Supreme Court. It may not be the ultimate step, but it is one more step towards transparency,” said the judge. The Collegium system, created in 1993, is a body of senior Supreme Court judges headed by the Chief Justice to identify and appoint judges.

He was responding to the statement whether the non-consideration of Justices AP Shah of Delhi High Court and AK Patnaik of the Madhya Pradesh High Court to the Supreme Court by the Collegium, despite their seniority in comparison with the judges considered, raises questions on whether seniority is a criterion or a self-serving tool to be used at will.

Justice Chelameswar was speaking at the release of the book ‘Appointment of Judges to the Supreme Court of India: Transparency, Accountability and Independence’, edited by Arghya Sengupta and Ritwika Sharma. He was on a panel with Prof Paul Craig of Oxford University to discuss ‘The Indian Higher Judiciary: Issues and Prospects’.

Prof Craig was of the opinion that there should be some judicial appointees and some people of sufficient intellectual merit and trustworthiness on the panel which decides on judicial appointments. “I don’t think judges have a monopoly in determining the criteria of judicial appointments,” said Prof Craig. Chelameswar refused to comment on the issue, stating that his views on the matter have been recorded in the National Judicial Appointments Commission (NJAC) judgment as he was a part of the bench. The NJAC, which was to include politicians and civil society, was proposed to replace the present Collegium system of appointing judges. It was rejected by the Supreme Court.

In the NJAC judgment, it has been stated that, “It seems difficult to repose faith and confidence in the civil society, to play any effective role in that direction. In India, the organic development of civil society, has not as yet sufficiently evolved. The absurdity of including two “eminent persons” on the NJAC, can perhaps be appreciated if one were to visualise the participation of such “lay persons”, in the selection of the Comptroller and Auditor-General, the Chairman and Members of the Finance Commission, the Chairman and Members of the Union Public Service Commission, the Chief Election Commissioner and the Election Commissioners and the like. The position would be disastrous.”

What are the critical reforms the Supreme Court needs to undergo if it has to remain credible in the public eye? “To answer this question, problems need to be understood. In the Supreme Court, the maximum strength is 31; the moment you create a bench with 31 members, every state will stake a claim to a seat. Now, it has become an unwritten norm that state-wide representation is required. Unfortunately, for the last 35 years almost, the policy of transferring of Chief Justices was adopted by the Government of India. Whatever be the political party which wielded power in this country, this was one issue everyone stood united. Multiple Chief Justices have requested a relook at this system, but no political party was willing to do it,” said Justice Chelameswar, who has served in Guwahati and Kerala.

Questioning the transfer policy, the senior judge of the apex court and member of the collegium, said that the issue has created a situation where four judges of the same HC have served as chief justices in various states at the same time. “Then all of them are seniors. So what seniority should we consider? Seniority of a Chief Justice or seniority of all India judges like the services? If the latter is considered, then is the experience as a CJ worthless? These are all problems. Norms need to be fixed,” elaborated Justice Chelameswar.

“This whole policy is designed on the belief that a local chief justice belonging to the same state is likely to be influenced by local factors. Are we sure that outside chief justices are not influenced by local factors? Why is a Chief Justice transferred? Why don’t we transfer Chief Ministers? I don’t think any Chief Justice has more power than the CM. No political party since 1985 was even willing to look at the transfer of CJs,” quipped the judge.

When asked if there was a need for a permanent constitution bench in the SC, he said he would welcome the idea, pointing out first there is a need to relook at the jurisdiction of the Supreme Court. “I don’t think Ambedkar ever thought the Supreme Court would one day hear bail applications. The Supreme Court was only intended to decide constitutional issues. The manner in which the jurisdiction of the Supreme Court expanded added to the problem,” he remarked.

Sidestepping the question on the quality of judgements at the High Court, Justice Chelameswar stated that if there were to be an appellate court above the Supreme Court, he was sure that half of the judgements would have been reversed. “After all it is an opinion.”

“If the quality of the High Courts is not up to the mark, we must devise ways and strategies to improve the quality of High Courts. Adding numbers to the Supreme Court is not the solution. After all, where do we get the judges to the Supreme Court? It is from the same pool,” said the judge, while concluding the conversation.

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