Will he ? Won’t He?           Narasimhan Vijayaraghavan                            Justice Dhananjay Chandrachud was recommended by Chief Justice U U Lalit  to the Central Government,as his successor, keeping in with the spirit and script of constitutionalism. Justice Chandrachud would be CJI for a two year period from Nov 9,2022  to Nov 24,2024, having been sworn in as India’s fiftieth Chief Justice. A long enough tenure to make his mark. As a pre eminent constitutional wizard, would he be ready, able and willing?

Will he ? Won’t He?

Narasimhan Vijayaraghavan

 

 

 

 

Justice Dhananjay Chandrachud was recommended by Chief Justice U U Lalit  to the Central Government,as his successor, keeping in with the spirit and script of constitutionalism. Justice Chandrachud would be CJI for a two year period from Nov 9,2022  to Nov 24,2024, having been sworn in as India’s fiftieth Chief Justice. A long enough tenure to make his mark. As a pre eminent constitutional wizard, would he be ready, able and willing?

 

First things first. Collegium must go. The Justices hold all the aces. Otherwise,it is not going any time soon. Even if the Modi dispensation manages National Judicial Appointments Act 2.0 , one wonders whether even newly inducted Chief Justice of India, would go by the holy book viz. Constitution, which has nothing to crow about a Collegium,at the helm. It is a creation by the Justices for themselves as a academicians are ad idem. Collegium has survived because justices are unwilling to let go a power they have tasted and find relishing. Would DYCJ  differ and dare, as a constitutional monarch?

 

Remember the famous quote of Justice Ruma Pal ( Retd), one of the most respected of Supreme Court judges, she said from the comfort of her retirement, after nearly 20 years of the collegium camping  into being,in November 2011,  to describe the process of appointment of judges to the superior courts as “possibly the best kept secret of this country”.

 

She had said, “Consensus within the collegium is some times resolved through a trade-off, resulting in dubious appointments with disastrous consequences for litigants and credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and lobbying within the system.”

 

The recent happenings in the Collegium of a couple of members standing down on the ‘recommendations’ to elude a consensus and the Central Government ‘splitting up’ the Collegium recommendation to pull out the transfer of Chief Justice S Muralidhar from Orissa High Court to Madras,do not add to the legitimacy of Collegium,  as ‘an invented institution by Judges for themselves’ as Justice V R Krishna Iyer taunted.

 

At the very core or root, the Collegium is not a constitutional construct. It was a ‘rude reaction’ from the Judiciary to the spate of poor disappointments not appointments by Executive and its  disdainful ways to the imprimatur of the  veto power  of Chief Justice of India, as Prof. Upendra Baxi put it. In Judges 1 to 4 cases,  the law lords have  performed and perfected a constitutional coup, to put themselves at the pedestal, not to be seen in any democratic polity across the world.

 

And when politicians,for once, got together and with just one dissenting vote from the maverick Ram Jethmalini in Rajya Sabha, enacted the Judicial Appointments Commission Act, the top court in a 4:1 majority dumped it on Oct,15,2015. The late, lamented Arun Jaitley, was furious. “ 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 has to be saved from elected representatives… The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger,” said Jaitley.

 

No one is happy with the Collegium. Not even the justices, it would seem. Former CJI J S Verma,who created the collegium system with his 30-page judgement in 1993 had said,”It all depends on the people who work it (collegium system)…they can spoil even the best of systems”. One can surely smell in this quip, what Babasaheb Ambedkar  said on 25th Nov,1949, in his peroration or winding up speech in the Constituent Assembly on the working of the very Constitution.

 

Forget not what Fali S Nariman had said , “I regret winning the Second Judges Case, through which the Supreme Court took upon itself the task of clearing appointments to the higher judiciary” Father Nariman said the recent instances of allegations against sitting judges, and the widespread belief that the collegium did not always recommend the best names to the Bench showed that the system had not lived up to expectations. “Today, for reasons I need not expand – I can only express my extreme anguish at the current state of ground realities in the matter of appointment of judges.”

 

The more they change, more they remain the same. Justices were ‘anguished’ with the appointments and recommendations of the Executive. So, they ‘took over’ the mechanism. And curiously even after decisively demolishing NJAC Act, 99th constitutional amendment, there is, as yet, no consensus between the Executive and Judiciary on the Memorandum of Procedure. It is still in the works and back and forth missives continue.

 

It would appear from the goings on, the executive and judiciary have reconciled to stay in their respective corners. They meet in the middle or wherever, as and when it suits them. Memorandum of Procedure morphs continuously, as they choose, as if a chameleon.

 

Executive may be convinced that the Collegium seemed too dear to Justices  and ‘independent judiciary’ as a basic structure of the constitution was a wide enough umbrella affording protection to the present dispensation, no matter what. So, the Executive, barring the odd occasions, has decided to meet the Collegium midway or beyond, with a willingness to manage. The recent pronouncement from Mr. Kiren Rijju Union Law Minister suggest that NJAC 2.0 may well be in the works.

 

The collegium  is not good or correct. Basically, it is not constitutional. Can the institution which is the guardian angel of our constitutional core, be itself mired in and by the existence of a Collegium, which it sired  for itself, and which is undeniably a constitutional convulsion. No one would know it better that DYCJ. He is steeped in the Constitution. If he is not aware of a constitutional value, it is non existent. The recent reported instances in la’affaire collegium, would be disturbing to him.

 

And he is assuming office in this backdrop. The fault lines may  not be his baby or folly. But DYCJ cannot ignore it. With the certainty of a two year fixed tenure, he can surely introduce ‘modifications’ as CJI J S Verma mildly put it, to the Collegium system to make it an ‘open and transparent’ institution as Justice Ruma Pal wanted it to be, by discussing,debating and deciding on at least a clear,consensual and constitutional  Memorandum of Procedure.

 

Will he ? Won’t he?

 

(Author of Constitution & its Making/Working- Musings,Anecdotes,Episodes),OakBridge Publishing, 2020/2021- and practicing advocate in the Madras High Court)

 

 

 

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