Twenty-four years ago this very day (October 6, 1993), a 9-judge Bench of the Supreme Court of India pronounced a landmark judgment, which would spark a debate in the years to come.
Interpreting Article 124 of the Constitution of India, the Court, in the Second Judges case, went on to hold that,
“….if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reason indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very goods reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable.”
The appointment of judges to higher judiciary underwent a sea change as the power, which was up until then, considered as vested with the Executive was effectively wrested by the judiciary.
The Collegium system as it exists today was crystallised another 5 years down the line, when the Court answered a Presidential reference, in what came to be known as the Third Judges case.
Since then, the Collegium has been functioning behind closed doors appointing Constitutional functionaries to High Courts and the Supreme Court.
Soon after the judiciary took over the task of what came to be known as “judges appointing judges”, cracks began to appear. Nepotism and opacity were alleged against Collegium as the legal fraternity lamented the fall in standards of judiciary.
Mediocrity of the Bench was held out as a direct fallout of the Collegium and Senior Advocates and jurists were up in arms against the opaque functioning of the Collegium.
Interestingly, Justice JS Verma, the judge who authored the majority opinion in the Second judges case, also did not hide his dissatisfaction at the functioning of the Collegium.
“My 1993 judgment which holds the field, was very much misunderstood and misused. It was in that context that I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore, some kind of rethink is required”, he said.
Despite all these, the Collegium and its opacity continued with sheer indifference. It seemed like a major crisis was overdue. And it finally happened.
In September 2016, Justice Jasti Chelameswar, one of the members of the Collegium, wrote a 3-page letter to the Chief Justice of India, expressing his “unwillingness” to participate in the collegium meetings.
The stand-off was subsequently resolved but one among the herd had spoken.
It would go on to re-ignite the debate surrounding Collegium with greater vigour.
Even as the debate raged, the stand-off between the Collegium and the Central government reached its zenith during the tenure of then Chief Justice of India, TS Thakur. Justice Thakur did not budge even as the Government upped the ante by stalling appointment and transfer files sent by the Collegium.
After Justice Khehar took over as CJI, the stand-off was resolved to an extent though allegations of Collegium succumbing to Executive pressure also raised its head.
The watershed moment, however, came with the resignation of Karnataka High Court judge, Justice Jayant Patel last month. He had resigned in protest over his transfer to Allahabad High Court, a move which prevented him from becoming the Chief Justice of Karnataka High Court.
Justice Patel’s resignation led to protests by the Bar at Gujarat and Karnataka. It was alleged that the Collegium had taken the decision at the behest of the ruling government since it was Justice Patel who had ordered a CBI probe into the ‘quadruple murder’ in the Ishrat Jahan case.
Senior Advocates including Dushyant Dave, Yatin Oza and GHCAA President Asim Pandya criticised the Collegium in the strongest words.
The Gujarat High Court Advocates Association even resolved to approach the Supreme Court by way of a writ petition praying for making Collegium proceedings transparent by disclosing reasons with regard to recommendations for appointment, non-appointment, non-confirmation of High Court judges, and elevation of High Court judges to the Supreme Court or as Chief Justice of a High Court.
And now twenty-four years and twenty Chief Justices later, five senior-most judges of the Supreme Court have taken a significant step towards bringing about transparency in appointments to higher judiciary.
The Collegium on October 3 passed a resolution stating that the decisions taken by the Collegium shall be put out on the website of the Supreme Court.
Interestingly, though the resolution was passed on October 3, it was put out on the Supreme Court website yesterday, i.e October 6; exactly 24 years after the Supreme Court had passed the judgment in the Second Judges case thereby assuming the power of appointments to higher judiciary.
Justice MN Venkatachaliah was the Chief Justice when the judiciary took over from the Executive in 1993. The Supreme Court and the Collegium saw 19 more Chief Justices making Justice Dipak Misra the 21st Chief Justice of India after the Collegium system of appointments came into existence.
The Collegium itself needs to find a more efficient way to deal with judicial appointments by divesting the duty to a Secretariat. However, this decision could be the first step towards transparency in judicial appointments and streamlining the process.
While different lawyers have expressed mixed reactions over the decision, this initiative by Justice Misra, who is little over a month into his tenure, will arguably go down in the history of the Supreme Court as perhaps the most significant decision ever by a Chief Justice in the last two decades.