Two Supreme Court judges in the Collegium want to “revisit’ Collegium system

The Supreme Court today pronounced its judgment in the contempt episode involving retired Calcutta High Court judge, Justice CS Karnan. The judgment was pronounced nearly two months after the court had delivered a crisp order holding him guilty of contempt. Meanwhile, one of the judges on the Bench, Justice PC Ghose retired from service.

However, what has caught the attention of the legal fraternity is not the observations on the contempt committed by Justice Karnan but certain other observations made by two judges on the Bench in their separate concurring judgment.

While four of the seven judges chose to go along with the judgment of CJI Khehar, Justice Jasti Chelameswar and Justice Ranjan Gogoi had something more to say.

Justice Chelameswar, therefore, chose to pen down a separate judgment to air his thoughts on a much discussed subject – judicial appointments; And Justice Gogoi decided to go along with Justice Chelameswar.

In the judgment, the two judges have made a very significant observation – that the current system of appointment of judges to Constitutional courts need to be revisited. The judgment states:

“This case, in our opinion, has importance extending beyond the immediate problem. This case highlights two things, (1) the need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter any member of the judiciary at all levels; and (2) the need to set up appropriate legal regime to deal with situations where the conduct of a Judge of a constitutional court requires corrective measures – other than impeachment – to be taken.”

The Collegium system, which is the current method for appointing judges to High Courts and Supreme Court, came into existence in 1993 with a judgment of the Supreme Court in Second Judges case. The Collegium system has been subject to much derision with allegations of nepotism, favouritism and elevation of incompetent judges being raised by various persons within and outside the legal community.

The current government had introduced the National Judicial Appointments Commission (NJAC) by way of a Constitutional amendment to overcome the Second Judges case and thereby, do away with the Collegium system.

The Supreme Court had, however, struck down the said amendment as unconstitutional. Interestingly, the 5-judge Constitution Bench which struck down NJAC was headed by Justice Khehar and it had one dissenting member – Justice Jasti Chelameswar.

The dissenting opinion by Justice Chelameswar was highly critical of the manner in which the Collegium functioned. He wrote,

“Have we really outgrown the malady of dependence or merely transferred it from the political to judicial hierarchy?”

Subsequently, Chelameswar J. had also refrained from attending Collegium meetings last year. In a three-page letter, Justice Chelameswar had highlighted his “unwillingness” to participate in the Collegium meetings, forcing the Collegium to defer certain meetings.

This stalemate was subsequently resolved, though not fully and finally. Justice Chelameswar has now echoed his views again and importantly, he seems to have found support from a brother judge.

What makes matters even more interesting is that both Justice Chelameswar and Justice Gogoi are part of the Collegium.

Recently, another retired judge of the Supreme Court, Justice Shiva Kirti Singh had also called for improving upon the Collegium system by forming a body of retired judges and eminent jurists etc. as an adjunct to the Collegium, to select judges.

Disagreements with the Collegium system is slowly turning into animosity, and the signs are from within the Collegium itself.