“We will try to fast-track judicial appointments, obviously with the consultation of the Honourable Supreme Court. We will work as a team. But I would like to say with great humility that as Law Minister, I will not be a post office. The Law Minister and the Law Ministry have a role as a stakeholder, obviously giving due respect to the collegium system," said Law Minister Ravi Shankar Prasad, while assuming office in Modi 2.0, on June 3.
Honestly, this statement is more in hope and wishful thinking than any expression of confidence. Ravi Shankar is a Senior Advocate of the Supreme Court and was law minister in the 2014-2019 administration too. We must therefore attribute credibility to his expression of hope. But what of the reality?
Today, the Supreme Court boasts its full complement of 31 judges. This is new. And most welcome too. But let us not forget that present Chief Justice Ranjan Gogi ever since he took over office from October 3, 2018 has been proactive and worked overtime to make it happen. But he has had his way by not yielding to the requests of the Law Ministry to reconsider some appointments - as in the case of Justices Sanjiv Khanna, Dinesh Maheshwari, Aniruddha Bose, AS Bopanna. Collegium had stuck to its guns and the law ministry had to play 'post office'. That is the immediate provocation for the anguish of the law minister.
In its October 15, 2015 judgment the Supreme Court had struck down as unconstitutional the National Judicial Appoint-ments' Commission Act,2014 (NJAC) which provided for the establishment of the National Judicial Commission to appoint judges of the Apex Court and high Courts. Arun Jaitley then boomed, "A constitutional Court, while interpreting the Constitution, had to base the judgment on constitutional principles. There is no constitutional principle that democracy and its institutions have to be saved from elected representative. The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger,"
It means that the judiciary has virtually taken over the appointments of judges to the higher courts. The Collegium is the Master. Law Ministry plays no more than the role of a post office. It was on Oct. 6, 1993, in the Judges 2 case, nine judges of the Supreme Court invented the precept and practice of Collegium, in the lead opinion authored by Justice J.S. Verma. It was the 'rampaging Executive led by Madam Indira Gandhi which was red rag to the judges to give birth to a beast in Collegium' - as Justice V.R. Krishna Iyer brutally put it. Why did he say so? Even Justice J S Verma who wrote the verdict and Fali S Nariman who won the case, have since regretted the Collegium experience.
We need to do no more than read what a dissenting judge in Justice M.M. Punchi said about the Collegium. "This nine-Judge Bench sat from April 7, 1993 to hear this momentous matter concluding its hearing on May 11, 1993 close to the onset of the summer vacation. I entertained the belief that we all, after July 12.1993, on the re-opening of the Court, if not earlier, would sit together and hold some meaningful meetings, having a free and frank discussion on each and every topic which had engaged our attention, striving for a unanimous decision in this historic matter concerning mainly the institution of the Chief Justice of India, relatable to this Court. I was indeed overtaken when I received the draft opinion dated June 14, 1993 authored by my learned, brother J.S. Verma, J. for himself and on behalf of my learned brethren Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand and S.P. Bharucha, J.J. The fait accompli appeared a stark reality; the majority opinion an accomplishment. The hopes I entertained of a free and frank discussion vanished. But then came the opinion dated August 24, 1993 of my learned brother Ahmadi, J. like a pebble of hope hewn out of a mountain of despair, followed by the opinions of my learned brethren Kuldip Singh and Pandian, JJ, dated September 7, 1993 and September 9, 1993 respectively. No meaningful meeting thereafter was possible as the views by that time seemed to have been polarised.
I am in disagreement, though regretfully but respectfully, with the views of the majority in virtually re-writing the Constitution to assign a role to the Chief Justice of India, in the whole conspectus of the Constitution, as symbolic in character and to his being a mere spokesman representing the supposed vies of entire judiciary. I also disagree, likewise, in the creation of and vesting of powers assumed, in the hands of the oligarchy representing the judiciary as a whole created by adding words to the Constitution by interpretative exercise so to silence the singular voice of the Chief Justice of India of ever."
And then add the language used by Justice Ruma Pal, a highly respected Judge of the apex court, in her famed V.M. Tarkunde Memorial lecture on Nov. 11, 2011. You will know why the Law Minister's aspiration would be a forlorn hope. While speaking from the "safe haven of retirement", as she put it, "The process of appointment of judges to the superior courts was possibly the best kept secret of the country/ Judges' appointments are now initiated and cleared by a collegium of the four senior-most judges and the Chief Justice of India for the Supreme Court and three senior judges and the chief justice for a High Court. Since 1993, the executive's role has been to dutifully appoint those cleared by the collegium. The executive can return the names but has to appoint the judges if the collegium clears the list again. The criticism of appointments by the executive to the judiciary applied equally well to appointments made by judges to the judiciary. The mystique of the process, the small base from which the selections were made and the secrecy and confidentiality ensured that the "process may, on occasions, make wrong appointments and, worse still, lend itself to nepotism. An indiscreet comment or a chance rumour was enough to rule out a person's perceived suitability for the post, Friendships and obligations also sometimes colour recommendations. Consensus in the collegium is often arrived at by trade-offs, she said, with disastrous effects. She lamented the growing sycophancy and lobbying which colour these appointments. These appointments, she said, should be done by a judicial commission of non-partisan members. Unless the process is made transparent and the resource pool widened and some objective criteria laid down, arbitrariness in appointments will remain, she said.
The executive and the legislature, in a rare sense of unanimity, made NJAC a reality. Alas, they did not bargain with the Supreme Court, which having tasted the primacy of Collegium, was unwilling to let go. Now that Modi 2.0 is back with a better majority than before and with the opposition in disarray, the law minister may do well to get NJAC 2.0 back on track, otherwise he may have to lament in 2024 too, that the law ministry was a mere 'post office'.
(Author is practising advocate in the Madras High Court)...