Time to end secret cabal of Supreme Court collegium

The question is not just what did former Chief Justice K. G. Balakrishnan do that might have been wrong and corrupt. The question is also how did he get to the Supreme Court. Weren’t there red flags along the way? Of course, there were says Supreme Court lawyer Prashant Bhushan. Bhushan had told Tehelka in 2009 that in his view out of the last 16 or 17 chief justices, half have been corrupt.  “In my mind, Justice Balakrishnan was definitely included in that half,” says Bhushan. Balakrishnan’s career was checkered, to say the least. [caption id=“attachment_25894” align=“alignleft” width=“380” caption=“L’affaire Balakrishnan shows up a disquieting flaw in the Indian judicial system. India is one of the few countries where judges appoint their own. José Cruz/ABr/Wikimedia Commons”] [/caption] “This man had practised in the lower judiciary, he had resigned, he had gone into government service and then he was suddenly being elevated,” says Bhushan. “Of course there were questions.” The problem is the way judges are appointed to the highest court of the land, there is no place to voice those concerns. A collegium of senior justices including the Chief Justice makes the recommendations to the President. And they don’t need to explain to anyone why they choose who they choose. “The Apex court is a court of record,” says Raghul Sudheesh, associate editor at Bar and Bench. “The irony is the collegium maintains no record of its proceedings.” “There have been orders from the Central Information Commission asking for the records,” says Bhushan. “But the Supreme Court has always dodged the issue.” In effect, India is one of the few countries in the world where judges appoint their own. The tug-o-war It was not always this way. Article 124(2) of the Constitution says every judge of the Supreme Court shall be appointed by the President in consultation with the CJI. “In consultation” is a tricky term and has resulted in a long tug-o-war between the executive and the judiciary. It’s played out over three landmark cases which have become known rather unimaginatively as the First, Second and Third Judges cases. In 1982 the courts gave the government the upper hand in the S.P. Gupta vs the Union of India case otherwise known as the First Judges case.  That court held that when it came to appointing and transferring judges, the primacy belonged to the executive. The S.P. Gupta decision said the “consultation” by the President with the CJI when it came to judicial appointments was purely formal. In 1993 the judiciary got the upper hand thanks to the S.C. Advocates on Record Association vs Union of India aka  Second Judges case. It reversed the S. P. Gupta verdict by deciding the CJI actually had primacy when it came to appointments and the President couldn’t make any appointments unless the CJI agreed. “It grabbed the powers from the Executive and made consultation of the CJI binding,” explains Sudheesh. “It can be termed as ‘Judicial Amendment of the Constitution’.” The judiciary’s upper hand was solidified in 1998 by the Third Judges case. Then President K. R. Narayanan referred nine questions to the court in context of the Second Judges case. This time around the Bench ruled: As to appointment of the Supreme Court Judges, the Chief Justice of India should consult a collegium of four seniormost judges of the Apex Court. Even if two Judge give an adverse opinion, the CJI should not send the recommendation to the Government." Thus was born the collegium, the opaque body that chooses the men and women who will serve as Justices of the Supreme Court and eventually the CJI. The government became pretty much the collegium’s rubber stamp. The collegium – justice’s secret society “The problem is that it’s entirely ad hoc,” says Bhushan.  “Any member of the collegium can suggest anyone. No one knows who is being shortlisted. So even if you know something about the person you cannot say anything. There are no real criteria for selection, no method for preparing a short list.” How then does someone get on this list? “To be frank, the collegium chooses whom they like,” says Sudheesh. It could also choose to skip over someone it does not like. For example, Justice A. P. Shah of the Delhi High Court is known for many landmark judgments. He didn’t make it to the Supreme Court largely because it’s believed Justice S. H. Kapadia was a professional rival. And Kapadia was on the collegium . But Shah could not defend his record because he was never told he was being considered. “It functions by patronage,” says Bhushan bluntly. “Virtually anyone appointed to the Supreme Court, by and large, is someone who has patrons in the collegium.” The idea, initially, was to insulate the judiciary from political meddling. India has seen no dearth of that. Indira Gandhi was infamous for trying to keep the judiciary under her thumb. In 1973, she superseded not one but three Supreme Court judges, to appoint Ajith Nath Ray as the CJI because she thought the others were too independent. But now the balance of power has shifted so completely, says Sudheesh, “once the CJI and the collegium make a recommendation, practically nothing can be done to change it.”  The government can return a recommendation to the CJI, but if collegium insists on it the government’s hands are tied. “Earlier we saw political bias in the appointments,” says Bhushan. “Now you see nepotism and the patronage of the collegium. We swapped one for the other.” The long arm of politics The irony is despite the swap, the process is still not insulated from political meddling. Justice Balakrishnan is the classic example of that. Balakrishnan’s political patron was K. Karunakaran, Kerala’s longtime Chief Minister. His nomination to the Supreme Court was initially rejected by the CJI. The story goes then President K. R. Narayanan, a fellow Dalit, insisted upon it. “The government always has some role,” says Bhushan. “Now it just happens informally.” So politicians cannot be trusted to select the judges. Judges cannot be trusted to select their peers. Justice Balakrishnan is not the only judge to be embroiled in allegations of corruption. Former CJI Y.K. Sabharwal was accused of rulings that helped his sons who had partnerships with malls and commercial complex developers.  Justice P.D. Dinakaran whose elevation to the Supreme Court was halted because of corruption charges has been accused of having of wealth way disproportionate to his income. The question is then who gets to judge the qualifications of our judges? Transparency in the process would help says Bhushan. But what you really need is a full-time body for judicial appointment and selection. “You don’t want an ex officio body which does not have enough time,” says Bhushan. “Why not have five retired people of integrity from civil society who can go about the job in a scientific and transparent manner?” In South Africa, the Judicial Services Commission calls for nominations, draws up a list of candidates and then holds public interviews. In the US, there are highly politicized but public confirmation hearings by the Senate Judiciary committee when there’s a nomination to the Supreme Court. Is it time to do that in India and end the secret cabal of the Supreme Court collegium? After all we are a democracy choosing a judge, not a Pope.