GS Vasu By

In what could be described as a ‘Perestroika’ moment for the Indian judiciary, a senior sitting judge of the Supreme Court, for the first time in its history, has come out in the open and questioned its decision-making process, particularly the lack of transparency in the appointment and transfer of judges.

In the development that is likely to stir a nationwide debate on the state of our judicial system, Justice J Chelameswar is understood to have shot off a three-page letter on Thursday to the Chief Justice of India, Justice T S Thakur, expressing his unwillingness to attend meetings of the Supreme Court Collegium.

The judge, it is learnt, skipped the Collegium meeting scheduled on Thursday though it was attended by the remaining four judges, including the Chief Justice.

The meeting was expected to discuss the revised Memorandum of Procedure for appointment of judges but was deferred in the light of Justice Chelameswar’s letter. In October last year, Justice Chelameswar was the lone dissenting judge when a five-judge bench of the Supreme Court shot down the National Judicial Appointments Commission (NJAC) Act.

The Act provided for a six-member panel, comprising the CJI, two Supreme Court judges, the Union law minister and two eminent persons, to appoint judges to the Supreme Court and the High Courts.

While his four brother-judges favoured the Collegium system, Justice Chelameswar argued against the total elimination of the government from the selection process, as it was against democratic principles.

“Transparency is a vital factor in constitutional governance. Transparency is an aspect of rationality. The need for transparency is more in the case of the appointment process. Proceedings of the Collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks,” Justice Chelameswar wrote in his verdict.

After striking down the NJAC Act, the Supreme Court advised the Union government to draft a Memorandum of Procedure (MoP) for the appointment of judges but has since been repeatedly turning down suggestions made by the government on the method to be adopted.

One of these suggestions was that the government reserves the right to reject names recommended by the Collegium if they are not in ‘national interest.’ The government also wanted dissent, if any, expressed by the members of the Collegium over any proposal or recommendation, to be recorded in writing, which is not the case at present. According to highly-placed sources, Justice Chelameswar stated in his letter that nothing that’s discussed in the Collegium meeting remains on record and therefore, he saw no purpose in attending the meeting. Instead, he has suggested that the recommendations be sent to him in writing to record his views and return them to the Chief Justice. Indications are that Justice Chelameswar is in no mood to change his stand. This is more or less in line with what he said in his dissent judgment on the NJAC Act and the judge seems to have taken the view that the country expects transparency in public administration, including the decision-making of the Supreme Court.

In fact, in the aftermath of the October 1993 landmark judgment that paved the way for the Collegium system, several former judges of the apex court have been openly critical of the opaqueness in the process being adopted for the appointment of judges. The verdict, delivered by a nine-judge bench headed by the then Chief Justice JS Verma, in what is popularly known as the Second Judges’ Case, gave the judiciary or in other words, the Chief Justice of India, primacy in the appointment of judges and ruled that the executive cannot have an equal say in the matter.

Many years later, Justice Verma himself commented that the judgment needs to be reviewed and clarified that what he meant was somewhat different.

Things have now reached such a pass that Justice Chelameswar reportedly commented that the process is opaque even to the members of the Collegium themselves. His colleague Justice Kurien, who was also on the constitutional bench that struck down the NJAC Act, had sailed with the majority view but admitted in his judgment that the present Collegium system lacks transparency, accountability and objectivity. In fact, Justice Kurien went to the extent of saying that the Collegium system needs to be improved requiring a ‘Glasnost’ and a ‘Perestroika’. It seems the moment has finally arrived.