CJI trashes allegations against collegium system, refuses to respond to criticism over Art 370 verdict

Chief Justice of India D Y Chandrachud on Monday, 15 January rubbished the allegation about lack of transparency in the collegium system where judges appoint judges to constitutional courts and desisted from responding to criticism of the Supreme Court judgement upholding the abrogation of Article 370 of the Constitution that bestowed special status on the erstwhile state of Jammu and Kashmir.

In a candid and free-wheeling interview with PTI, the 50th CJI responded to questions on several issues pertaining to the judiciary, including the criticism of the Supreme Court verdict upholding the abrogation of Article 370 and the five-judge constitution bench judgement refusing to legalise same-sex marriage.

Justice Chandrachud also dealt with questions about criticism by eminent lawyers on the allocation of cases to particular judges and 'bench hunting', and said the allocation of cases is not "lawyer-driven" and vowed to maintain the credibility of the institution of the Supreme Court.

"I am very very clear in my mind that if the credibility of the institution of the Supreme Court is to be maintained, we have to ensure that the allocation of cases in the Supreme Court is not going to be a lawyer-driven allocation," he said.

Justice Chandrachud's response assumes significance as only a few days ago Justice Sanjay Kishan Kaul, since retired, had told PTI that there was a problem with the collegium system and it will be "unrealistic" to say it is working smoothly.

He had also said the National Judicial Appointments Commission (NJAC) was never given a chance to work, leading to angst in political circles and friction in the working of the collegium system.

The Narendra Modi government, after coming to power in 2014, got enacted the National Judicial Appointments Commission (NJAC) Act. The NJAC, tasked with the responsibility of making judicial appointments, comprised the Chief Justice of India, two senior Supreme Court judges, the union law minister and two other eminent persons nominated by the CJI, the prime minister and the Leader of the Opposition in the Lok Sabha.

However, in October 2015, the Supreme Court struck down the NJAC Act holding it unconstitutional.

Responding to a query about the criticism of the collegium system, the CJI said steps have been taken to ensure greater transparency.

"To say that the collegium system is lacking in transparency would not be correct. We have taken steps to ensure that greater transparency is maintained. A sense of objectivity in the decision making process is maintained. But I must also share something and that's my caveat. When we consider judges for appointment in the Supreme Court we are dealing with the careers of the sitting judges of the high court.

"Obviously, therefore the deliberations that take place within the collegium can't be put out in the public realm for a variety of reasons. Many of our discussions are on the privacy of those judges who are under consideration for appointment to the Supreme Court. Those deliberations, if they have to take place in a free and candid atmosphere, can't be the subject matter of video recording or documentation. That is not the system which the Indian Constitution has adopted," Chandrachud said.

Responding to the criticism of the unanimous five-judge bench verdict of the Supreme Court upholding the scrapping of Article 370 of the Constitution, he said the judges decide a case "according to the Constitution and the law".

The CJI said the judges speak their mind through their judgement which becomes public property after the pronouncement, and people in a free society can always make their opinion about it.

"So far as we are concerned we decide according to the Constitution and the law. I don't think it will be appropriate for me either to respond to the criticism or mount a defence to my judgement. What we have said in my judgement is reflected in the reason present in the signed judgement and I must leave it at that," Justice Chandrachud said.

On the issue of the denial of same-sex marriage rights to the queer community, he said, the outcome of a case is never personal to a judge and he has no regrets.

The CJI, however, acknowledged that the LGBTQIA++ (lesbian, gay, bisexual, transgender, intersex, queer/questioning, asexual) community fought a long and hard battle for realising their rights but judges do not associate themselves with a cause and, having decided the case now, he has left it at that.

"Once you decide a case you kind of distance yourself from the outcome. Outcomes are never personal to us as a judge. I never have any regrets. Yes, I have been in the majority in many cases and minority in many cases. But the important part of life is never to associate yourself with a cause. Having decided a case, I leave it at that," Chandrachud said.

He also spoke about why the 2019 judgement of a five-judge constitution bench which paved the way for the construction of a Ram temple at the disputed site in Ayodhya was anonymous.

The Ayodhya verdict, for the first time in the history of the apex court, was anonymous and did not contain the name of the author judge.

"When the five-judge bench sat to deliberate on the judgement as we all do before a judgement is pronounced, we all decided unanimously that this will be a judgement of the court. And therefore there was no authorship ascribed to any individual judge," the CJI said.

On 9 November, 2019, settling a fractious issue that went back more than a century, a five-judge bench headed by the then CJI Ranjan Gogoi had in a historic verdict paved the way for the construction of the temple by a trust and ruled that an alternative five-acre plot must be found for a mosque in the Hindu holy town