The recent Collegium decision and how it affects the future of the Judiciary

Amit George

At a jam-packed farewell for Justice Kurian Joseph at the Supreme Court lawns in November of last year, Chief Justice of India Ranjan Gogoi spoke eloquently on a wide range of issues. What was most notable was perhaps his expression of dismay at the perceived inability of the higher judiciary to attract bright young minds to its fold, resulting in a serious crisis of institutional continuity as an increasing number of remarkable judges retired and demitted office. He said,

 “[g]ood judges are going away. We need replacements…I am afraid. I am apprehensive. The younger lot in the bar are not willing to become judges.”

The Chief Justice would attribute this unwillingness to the higher judiciary losing its ‘aura and majesty’.

Less than a month later, the Chief Justice would preside over yet another farewell; this time for Justice Madan B Lokur. As the Supreme Court lost yet another respected judge, the importance of finding replacements – both in the short term and for the wider future – grew even more pronounced. However, as the recent controversial developments immediately following the retirement of Justice Lokur have demonstrated, this unwillingness and reluctance on the part of many to join the higher judiciary is very much a result of a flawed system of finding ‘replacements’; more so than esoteric and conveniently arms-length formulations of a fall in ‘aura and majesty’.

Context and Conceptual Clarification

First, for some context. There is no point in repeating in detail the developments that have been the subject matter of frenzied debate in the past few days. Pithily put, the Supreme Court Collegium, consisting of Justices Ranjan Gogoi, Madan B Lokur, AK Sikri, NV Ramana and SA Bobde met in the last week of December, 2018 and apparently approved the names of Justice Rajendra Menon, currently Chief Justice of the High Court of Delhi, and Justice Pradeep Nandrajog, currently Chief Justice of the Rajasthan High Court, for elevation to the Supreme Court of India.

However, before this decision was formally announced, Justice Lokur retired from the Supreme Court. Upon his retirement, the Collegium stood reconstituted, with Justice Arun Mishra becoming a part thereof. This reconstituted Collegium met in the second week of January 2019 and proceeded to discard the decisions taken just a week prior thereto. The reconstituted Collegium decided, as reflected in the Collegium recommendation dated 10.01.2019, to recommend Justice Dinesh Maheshwari, currently Chief Justice of the Karnataka High Court, and Justice Sanjiv Khanna, a senior Judge of the High Court of Delhi, for elevation to the Supreme Court, superseding various other judges.

Now, a conceptual clarification to add to the context. It may be clarified, at the outset, that an out-of-turn elevation to the Supreme Court, or a supersession of more senior judges, is neither inherently condemnable nor representative of something being necessarily amiss. There is enough precedent, including in the recent case of the elevation of Justice KM Joseph, where judges who were comparatively junior in the all-India hierarchy have been elevated to the Supreme Court superseding those senior to them.

A supersession might, in the appropriate context, be a validation of outstanding merit as opposed to relatively mechanically construed seniority or as an instrument to avoid the elevation of someone perceived as unsuitable. However, a supersession is still a significant departure from the general norm as recognized in the Second Judges’ Case, as also entailing an element of stigma for those so superseded, and therefore there is a fundamental requirement to ensure that such a decision originates in, is deliberated upon in, and is operationalized in, a fair, considered and transparent manner.

When Justice HR Khanna was superseded during the Emergency days, what was most galling about the decision was the background and manner in which it was engineered and the obvious reason that was behind it. Therefore, the process by which any such decision is arrived at, particularly one of supersession, is required to be free of any suspicion, de-hors the merit of the candidate in question.

This last caveat is important inasmuch as Justice Sanjiv Khanna has had an unblemished career as a judge in the Delhi High Court and his independence and integrity are unquestioned. At the risk of summarizing a long judicial career by reference to a single judgment, a recent decision of Justice Sanjiv Khanna, while heading a Division Bench of the High Court of Delhi, wherein he set aside the Election Commission’s singularly unsustainable order disqualifying several Aam Aadmi Party MLA’s without following due process, comes to mind.

The Problem with the Collegium recommendation

Considerations of individual merit aside, the recent decision of the Collegium is shrouded in secrecy and intrigue. As the facts would demonstrate, within a space of one week, there has been an abrupt shift in consensus with wide-ranging effect. As to the reason for this drastic change, what is offered as an explanation is the pith elaboration that it was on the basis of having taken “a fresh look” in the light of the purported “additional material that became available”.

While such an explanation is not only cryptic, it further raises the problematic aspect of the source and contents of this apparently rushed information which came to light in the brief period of a few days. Yet further, as any lawyer practicing on the writ-side before a High Court would know, if any administrative authority were to base its decision, no matter how minor, on an alleged unspecified input sans any other reasoning, the High Court would immediately strike down the same, or at the least demand production of the relevant material upon which such an administrative decision was based.

What further rankles is that the four individual judges, common to the original and re-constituted Collegium, who apparently agreed on an original consensus, just a few days later seemed to discard that consensus for totally unspecified reasons.

As reflected in the majority opinion of Justice JS Khehar in the NJAC Case, the eventual recommendation made by the Chief Justice of India is based on the ‘collective wisdom’ of a Collegium of judges. In the same way, the Collegium, as a whole, is representative of, and required to reflect, the collective wisdom of the institution of the Supreme Court as a whole. In fact, the very composition of the Collegium being based purely on the seniority of the judges concerned within Supreme Court demonstrates that it is intended to reflect the collective wisdom and experience of the institution as a whole, and is not intended to serve as a fiefdom of the individuals that constitute it. Considered in the aforesaid light, the Collegium recommendation dated 10.01.2019 falls woefully short.

A Question of (In)Justice

This brings us to the question of justice, and the difficulty with convincing bright young minds to join the higher judiciary. For any successful lawyer, an offer of judgeship marks a fork in the road. It’s an agonizing decision for most, and one that is not made lightly. When a young lawyer decides to accept judgeship, he or she does it with the hope, if not a conviction, that in a long career ahead while dispensing justice he or she would not be personally subjected to injustice of any kind.

As a lawyer, or as any other normal citizen, an individual is free to ventilate his or her views and opinions, and to seek redress for any grievance or injustice that befalls him or her. When one becomes a judge, the avenues for expression as also redressal of instances of personal injustice are significantly curtailed. Just as judges are known to speak only through their judgments, any injustice or slight suffered by a sitting judge is expected to be resolved by the person concerned within the administrative hierarchy of the judiciary. The only other option is resignation; either to one’s fate or from judgeship itself.

To situate this reality in the present context, if we consider the cases of the judges who were apparently in consideration for elevation to the Supreme Court prior to the latest Collegium recommendation viz. Justice Pradeep Nandrajog, Justice Rajendra Menon, Justice Gita Mittal and Justice S Ravindra Bhat (with the latter three being first-generation lawyers), after several years of hard work and toil, and the emotional and physical toll that it has inflicted upon them, they are now being superseded through a process that is extremely problematic, and on the basis of reasoning which can be described as middling, at best, and practically non-existent, at the worst.

One wonders whether any of these judges would have consented to joining the Bench if they had foreseen the turn of events in the present day. This is not to say that a judge’s career is worthwhile or fulfilling only when one makes it to the highest Court in the land or assumes any particular post. Goodwill, reputation and legacy are not prisoners to a perceived setback in career progression.

In the Delhi High Court, in recent memory, one remembers Justice BD Ahmed, about whom the universal opinion seems to be that the Supreme Court was left poorer without his presence. Justice SK Kaul, who currently graces the Supreme Court, is similarly considered to have been a very deserving prospect for the post of Chief Justice of India, both on merits and seniority, though his delayed elevation to the Supreme Court put paid to the said possibility.

The question, therefore, is not one of personal ambition, or the fulfillment thereof, but of institutional justice and fairness. Every instance of a deserving individual not given his or her due within the judiciary, is not only an abrogation, at a normative level, of all that the judiciary stands for, but more crucially, on a deeply personal level, is a cautionary tale to all those who contemplate an entry into its hallowed, but evidently unpredictable, precincts.

To borrow the words of Justice Rajiv Shakdher, spoken with stoicism and grace despite the monumental injustice that he had been subjected to, during his farewell address in the Delhi High Court on the verge of his transfer to the Madras High Court,

“Life holds many surprises and sometimes surprises hurt…”

Too many hurtful surprises, however, and an institution is perceived as not worth being a part of, or worth fighting for.

Post-Script

Every decision of the Chief Justice of India, and the Collegium headed by him/her, in matters of appointment, directly impacts, at an institutional level, the ability of the judiciary to replenish its dwindling ranks, and even more fundamentally, it impacts the very standing of the legal profession itself.

The worry that the current Chief Justice of India reflected about a lack of enthusiasm to join the Bench, is in many ways foreshadowed by the reluctance of fresh law graduates to enter the rough and tumble of litigation. At successive National Law School convocations, University Chancellors who are Chief Justices of the High Court concerned make it a point to extol students – many of them first-generation law graduates – to enter the field of litigation by assuring them of a fulfilling career that is ostensibly awaiting them in the future, and of the profession giving them their due.

What a tragedy indeed, when the very person giving the assurance cannot be sure that this assurance will reflect in his or her own career in the future!

Amit George is an Advocate at the Delhi High Court.