NJAC Dissent Never Suggested Handing Over Selection Of Judges To The Executive, I Know The Dangers Of It : Justice Chelameswar

Justice J Chelameswar, former Supreme Court Judge, said that in his dissenting judgment in the NJAC (National Judicial Appointments Commission) case, he never suggested the handing over of the selection of judges to the executive.

“I know the dangers of it more than anyone else”, the former Apex Court Judge said in this regard. He was speaking on the topic "Is Collegium Alien To The Constitution?' at a seminar organised by the Kerala High Court Unit of the Bharatiya Abhibhashaka Parishad on Tuesday at the Kerala HC auditorium.

 Explaining his dissenting opinion in the landmark NJAC judgement he said,

“Nowadays, on TV and in media it is propounded that Chelameswar said hand over the reins to the executive. That was not the issue before me, the question was whether the Parliament had the necessary constitutional power to make such an amendment and if this amendment is made, whether that would be consistent with the basic structure of the constitution. I held yes for both questions. All that I said in that judgment was this.”

Argument that Collegium is illegal as the word is not mentioned in Constitution is absurd

The former Apex Court judge also said that the argument that the collegium system is illegal, because the term does not find a place in the constitution, is absurd.

“A very eminent personality recently said that the text of the constitution does not contain the word collegium and therefore it is illegal. My friends, who are all lawyers, does the Constitution contain anything which says freedom of press? If we accept this kind of logic or argument, a lot of things including freedom of press, can go.”

Justice Chelameswar also recalled an excerpt from a book authored by Abhinav Chandrachud that speaks about a judgment given by an additional judge of the Madhya Pradesh High Court against the then Chief Minister of Madhya Pradesh. His name was recommended three times but the government refused to accept it. “It was in this background that the collegium system came to be. Collegium system is a shorthand word given to a system that already existed. It simply gave a legal framework to an existing practice”.

According to the Former Judge, the Second Judges’ case only formalised the collegium system. It tried to impose limitations on the powers of the Chief Justice and impose discipline on the selection process of judges. Speaking on the collegium system Justice Chelameswar said,

“The spirit in which the judgement was written was not the winner takes it all. The purpose was to select the best person. The judges who wrote the judgment wrote with concern for the institution and with the freedom of dissent in mind. But unfortunately, what happens is power has the tendency to corrupt. Abusing power is corruption on the system. Whether it is legislative executive or judicial power, power is power. In the process collegium system created a lot of problems”

The Parliament created NJAC which consisted of the top three judges of the Supreme Court, the Law Minister and two eminent civil society members. All political parties unanimously voted in favour of the NJAC Bill, only Mr Ram Jethmalani voted against it, Justice Chelameswar noted. “When the matter came up before the bench, I repeatedly asked who will be chosen as civil society members?” he said. What matters is not who makes the choice but how the choice is made.

On how the selection of judges should be made, he said some say that only when judges appoint judges will judiciary be independent and some say that the people chosen by the people, ie the executive, should make all appointments. He was of the view that both these were extreme positions to take. “I think the truth lies somewhere in the middle.” he said.

“Independence is inherent in human beings. It doesn’t come with who is choosing the judiciary but perhaps with the process of that choice. Whether the Law Minister chooses, or the Chief Justice Chooses, is not what is important. The parameters for choosing them, the considerations made, that potentially decides the independence of the judiciary.”

On his consistent stand against the lack of transparency in the collegium system he said:

“It was considered controversial when I said please at least record why you are rejecting, accepting or transferring a judge. Nothing is recorded. There are allegations against some judges that comes before collegium but nothing is done usually. If allegations are serious necessarily some action is required to be taken. Unfortunately, despite 75 years of an independent judiciary, the only answer to this problem is to simply transfer judges.”

Expressing concern about the quality of judges selected he said, "some judges are less efficient. Some are just lazy and take years and years to write judgments. Now if I say anything I will get trolled tomorrow saying after retirement why is he haunting the judiciary, but that is my fate.”

He also noted that on two occasions the Supreme Court recently remanded two judgements back to the High Courts because it could not understand what was written in those judgement. “How do deal with such judges? Transferring them will not solve the problem. This is not going to help the institution, it is not going to help the system and it is not going to help this country”

Stressing on the importance of an independent judiciary for the future of the country he said:

“Please remember that ultimately independent judiciary is an essential element for survival of any democracy. Just imagine what would happen otherwise in this country. The officers would become law, and there would be no way to question the correctness of their actions.”

Recalling his words at an event back in 2008 he said

“I just want my children and grandchildren to live with the dignity in this country. If you believe you also want your children and grandchildren to live with the dignity in this country, preserve this institution, not just the building. Preserve it in its quality and dignity.”

“Generally, as a rule, no government, and I am not talking about this particular govt or that political party, but governments usually are not lovers of the judicial system in democratic societies. Any executive government anywhere in the world would love to have a judiciary which approves of everything that they do", he said.

Justice Chelameswar concluded his address stressing on the need to shift focus to improving the judicial system “Nobody is talking about the common man waiting for years at the corridors of the courts, why is this happening? How can we improve the system? This is something that needs our attention."

The Additional Solicitor General of India, Senior Advocate Vikramjit Banerjee also addressed the gathering. However, he took a view contrary to that of the Justice Chelameswar on the collegium system. The term Collegium is not in the constitution for a specific reason, according to Sr. Adv Banerjee. Since India adopted its system from the United Kingdom, the Indian constitution did not envisage a strict separation of powers, he said. According to the ASG, a true judiciary can function only if it works in consonance with the democratic polity. This debate is not unique to India. Israel and Australia are all having the same debates, he said. “The system which works best for us is one that takes along the democratic process”, he suggested. The ASG concluded his address by stating that:

“J Chelameswar said power corrupts and can be abused. The flipside is also true, we have seen the downsides of it, the constant fighting each other into a deadlock.”

Live updates of the event can be accessed here.