Recent Collegium Decisions: Unanswered Questions

Consider this: The collegium met on December 12, 2018 and took certain decisions. This is clear from the January 10, 2019 resolution of the collegium, which states, inter alia, "The then Collegium on 12th December, 2018 took certain decisions." Among the decisions taken and resolved were the elevation of Rajasthan high court Chief Justice Pradeep Nandrajog and Delhi high court Chief Justice Rajendra Menon to the Supreme Court. The January 10 resolution overturned these decisions.

According to the prevailing practice, the resolution should have been communicated to the government and uploaded on the Supreme Court website. But neither steps were taken. Why?

Whatever the reason, the more pertinent question is: Can the Chief Justice – acting on his own – withhold communication and publication of a resolution of the collegium? If so, where from does the Chief Justice derive such an arbitrary power?

The resolution of the collegium in its January 10 meeting – when the collegium changed after Justice Lokur retired on December 31 – clearly suggests that the decision taken on December 12, 2018 was not communicated or placed in the public domain because "the required consultation could not be undertaken and completed as the winter vacation of the Court intervened."

This has reference to Clause 8 of the Memorandum of Procedure (MoP) relating to the appointment of judges to the Supreme Court. This clause reads:

"The Chief Justice of India, in consultation with other Judges in the Collegium, would ascertain the views of such Judges of the Supreme Court, who have worked in the High Court in which the person being considered for elevation has worked."

Three judges in the collegium at that time had worked with Chief Justice Nandrajog and one had worked with Chief Justice Menon, while three others were aware of his functioning having been judges in the Delhi high court. Was there a need, therefore, to ascertain the views of judges outside the collegium (called consultee judges) who were associated with the high courts in which the two Chief Justices had worked?

Clause 8 of the MoP is not mandatory – the Chief Justice would, "in consultation with other Judges in the Collegium" ascertain the views of judges outside the collegium. This clause is operational only if no judge in the collegium is aware, first hand, of the working and functioning of a judge being considered for elevation to the Supreme Court. That was not the case on December 12, 2018.

Outside consultation

When should the consultation with judges outside the collegium take place, if at all found necessary? The MoP is silent on this but it must be assumed that the consultation should take place before a resolution is passed by the collegium so that it is an informed decision. It makes no sense to have a post-decisional consultation for it would indicate that the resolution of the collegium is without due application of mind – something unfortunate.

Will the collegium reverse its resolution on the basis of the consultee judge's post-decisional opinion? Has that ever happened? Incidentally, the decision taken on January 10, 2019 was also prior to any consultation with the concerned consultee judges.

As per the prevailing practice, the January 10 decision, along with the opinion of the consultee judges must have been communicated to the government since it has been uploaded on the website of the Supreme Court. The government now has the option of sending back the decision for reconsideration by the collegium, including on the basis of the views expressed by the consultee judges or reject the views of the consultee judges.

The question of when

When did it dawn upon the Chief Justice that post-decisional views of the consultee judges were required to be ascertained without "consultation with other Judges in the Collegium"? Was it before the Supreme Court closed for the winter vacation, during that time or after? The text of the resolution negates the third possibility.

The first possibility is that the Chief Justice realised the necessity of "the required consultation" before the Supreme Court closed for the winter vacation. If so, was he not obliged to immediately inform all the judges in the collegium of this 'lapse' so that it could be rectified before the Supreme Court closed for the winter vacation or at least during it? The Chief Justice had more than enough time to take steps to rectify the lapse (if any) but no steps were taken for rectification. Why?

The second possibility is that realisation dawned upon the Chief Justice during the winter vacation – in that event, was he not obliged to immediately inform the judges in the collegium, at least before its composition changed – he had time till December 31, 2018. The date of realisation is crucial and yet no one knows when it happened.

The Chief Justice could have initiated the post-decisional consultation process when the Supreme Court reopened on January 2, 2019, but did not do so perhaps because the composition of the collegium had changed. This is hardly a reason for not initiating the post-decisional consultation. The ascertainment of views of the other judges in the collegium could have been taken before December 31, 2018.

Quite apart from that, a decision taken by the collegium does not require any ratification by another collegium and so it was not at all necessary for the Chief Justice to have extensive deliberations on January 5-6 with the newly-constituted collegium to have a fresh look at the matter. Permitting such a procedure can have disastrous consequences in a given case, since it confers on the Chief Justice the authority to withhold communicating the decision of the collegium to the government (and everyone else) until the collegium is reconstituted. This gives the Chief Justice arbitrary and unbridled power.

'Additional material'

The text of the decision taken on January 10, 2019 states that it was appropriate to have a fresh look at the decision taken on December 12, 2018 in the light of some additional material that had become available (apparently) to the Chief Justice. The text of the decision states: "After extensive deliberations on January 5-6, 2019, the newly-constituted Collegium deemed it appropriate to have a fresh look at the matter and also to consider the proposals in the light of the additional material that became available."

When did this additional material become available? Surely it was not during the winter break otherwise the Chief Justice would have informed all the judges in the collegium of it – unless he wanted it kept a secret. The additional material must, therefore, have been received by the Chief Justice only after the Supreme Court reopened on January 2, 2019.

This additional material appears to have been extensively deliberated upon, informally, on January 5-6, 2019 – informally, since the decision of January 10, 2019 of the newly-constituted collegium is silent on superseding the decision taken on December 12, 2018. Can such vital decisions and resolutions that affect the appointment of judges to the Supreme Court be taken in such an informal manner? If a decision of the Collegium is required to be superseded, should it not be done formally? Is the process of appointment of judges of the Supreme Court like plasticine to be moulded in any shape and manner as desired by the Chief Justice or the collegium?

It is clear that the chain of events from December 12, 2018 till January 10, 2019 lead to only one conclusion – that the Chief Justice of India has assumed the role of the master of the collegium with the tacit consent of the other judges in the collegium. The decision of not implementing the resolution of December 12, 2018 is procedurally flawed and shrouded in mystery.

The independence of the judiciary is at stake and the collegium system definitely needs reconsideration before it is too late. The Chief Justice should ask himself the question: Is this why he participated in the transparency and accountability 'press conference' on January 12, 2018?

This article was first published  In The Wire . Read it Here