Independence, impartiality and fearlessness of Judges are not the private rights of the Judges but citizen's rights. Ultimately judicial legitimacy/ power rests on people’s confidence in Courts. The New Year has ushered in key changes in Hon'ble the Supreme Court of India with two new Judges joining it on January 18, 2019. The Chief Justice of Karnataka High Court, Dinesh Maheshwariand a Judge of the Delhi High Court, Justice Sanjiv Khanna, were administered the Oath of Office by Chief Justice of India Ranjan Gogoi in his Court despite a raging controversy over the merits of the Collegiums’ recommendation to elevate them, overlooking their lack of Seniority over other eligible Judges.

Justice Dinesh Maheshwari, Chief Justice of Karnataka High Court & Justice Sanjiv Khanna ofDelhi High Courtwere on January 16, 2019 appointed as Judges of Hon'ble the Supreme Court of India following Presidential approval. The notification came six days after the Apex Court Collegium, headed by Chief Justice of India Ranjan Gogoi, recommended their elevation. The Collegium’s decision to elevate Justices Khanna & Maheshwari created quite an uproar as it was different from the decision taken by the Collegium in December, 2018.
The Ministry of Law & Justice notified the appointment of Justice Maheshwari & Justice Khanna, in exercise of the powers conferred by clause (2) of Article 124 of the Constitution of India, when Hon'ble the President of India approved the appointments.

Last year in December, 2018 the Collegium had recommended Chief Justice of Rajasthan High Court Pradeep Nandrajog and Chief Justice of Delhi High Court Rajendra Menon for elevation to the Apex Court. That Collegium changed after Justice Madan Lokur retired on December 30, 2018 and Justice Arun Mishra was inducted. However on 10th January, 2019, the new Collegium - after Justice Madan Lokur had retired - held its first meeting and decided to elevate Chief Justice of Karnataka High Court Dinesh Maheshwari & Delhi High Court Justice Sanjeev Khanna to the top Court. "While recommending the names of Chief Justice Dinesh Maheshwari & Justice Sanjiv Khanna, the Collegium has taken into consideration combined seniority on all-India basis of Chief Justices & Senior Puisne Judges of High Courts, apart from their merit and integrity," the Collegium said.

The decision met criticism from some sections of legal fraternity which argued that the super session will be unfair to many Senior Judges including Chief Justice Pradeep Nandrajog.
Justice Sanjay Kishan Kaul of Hon'ble the Supreme Court wrote a note to the Chief Justice of India and other members of the Collegium -- Justices A. K. Sikri, S. A. Bobde, N. V. Ramana & Arun Mishra - raised his reservations for ignoring the Seniority of Justices Rajendra Menon and Pradeep Nandrajog.

Meanwhile, the move did not go down well with some of the former Justices who expressed their displeasure and one of them has even written to Hon'ble the President of India Ram Nath Kovind. A former Judge of Delhi High Court Kailash Gambhir had written to Hon'ble the President Ram Nath Kovind saying the Collegium’s resolution to elevate Justice Sanjiv Khanna was ‘appalling and outrageous’ because an “earth-shattering decision has been taken to supersede as many as 32 Judges, which include many Chief Justices, casting aspersions on their intellect, merit and integrity.” Retired Judge, now a Senior Advocate, urged Hon'ble the President of India that the credibility and independence of the judiciary be preserved and "let another historical blunder not be committed".

The Bar Council of India, which is an apex body of lawyers, said the decision of the five-member Collegium headed by Chief Justice of India Ranjan Gogoi was viewed by the Bar and the Common man as “unjust and improper”. BCI Chairman Manan Kumar Mishra, in a statement, said the supersession of several senior Judges and Chief Justices of the country cannot be tolerated by the people and the revocation of the earlier decision recommending the names of Justices Pradeep Nandrajog and Rajendra Menon is viewed as “whimsical and arbitrary”.
Justice Chelameswar, who retired last year in 2018, said that “this is exactly why I refused to attend the Collegium meetings in 2016″. On the other hand, former Delhi Chief Justice A. P. Shah said that this case shows that the Collegium system continues to be opaque, secretive and unaccountable.

In the Second Judges case, the nine-judge bench of Hon'ble the Supreme Court of India held in 1993: “Inter-se seniority amongst Judges in the High Court and their combined seniority on all India basis is of admitted significance in the matter of future prospects... It is, therefore, reasonable that this aspect is kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court … this would also lend greater credence to the process of appointment and would avoid any distortion in the seniority between the appointees drawn even from the same High Court.”

Learnings from the past
Take the case of Justice A. N. Ray, who was appointed Chief Justice of India (CJI) in 1973 superseding three Senior Judges, or Justice M. H. Beg, who was appointed CJI superseding Justice H. R. Khanna in 1977.

In the Bank Nationalization case (1970), while as many as 10 Judges went against the Government, Justice Ray approved the Government’s action. Similarly, Justice Beg, in the Indira Gandhi's election case, held that while democracy is the basic structure, free and fair election is not.

The National Judicial Appointments Commission (NJAC) was struck down by Hon'ble the Supreme Court of India because it would have compromised the independence of the Chief Justice of India and given a role to the Government in the appointment of judges. Unlike in the U.S. where Judges are appointed by the President and are known to be leaning towards the Democrats or Republicans, Indian Judges are not supposed to have any political affiliation. But is it possible to completely insulate Judges from Governmental influence? The answer is no - as George Orwell pointed out in1984, the Government is everywhere, and Judges as fellow human beings do get influenced by it. The Judiciary asserts its position only when the Government is weak. This Collegium system was asserted when we had weak Central Governments in the 1990s.

Power and influence
‘Power’ and ‘influence’ are fundamental concepts in society. ‘Influence’ is sometimes considered to be an aspect of ‘power’. According to the American sociologist, Alvin Ward Gouldner, the universal norm in human societies is that individuals are obligated to reciprocate favours received. Gouldner articulated the “norm of reciprocity” in the following manner: “people should help those who have helped them” and “people should not injure those who have helped them”.

In his NJAC Judgment (2015), Justice J. S. Khehar discussed the issue of reciprocity at length in striking down the National Judicial Appointments Commission. He referred to Laura E. Little’s work on American Jjudges who felt obliged to the President for nominating them and Senators who helped them in the confirmation process. Justice J. S. Khehar, therefore, preferred exclusion of the political executive from the appointment of Judges as a feeling of gratitude towards the Government impacts the independence of the Judiciary. It was for this very reason that even Dr. B. R. Ambedkar wanted to insulate the Judiciary from political pressures.

In his autobiography, Roses in December, the former Chief Justice of the Bombay High Court, M. C. Chagla, who also served as a Minister in Indira Gandhi’s Cabinet, boldly stated the adverse impact of supersession when he said, “the effect of these supersessions was most deleterious on the Judges of the Supreme Court who were in the line of succession to the Chief Justiceship. Each eyed the other with suspicion and tried to outdo him in proclaiming his loyalty to the Government either in their judgments or even on public platforms.” A similar depiction of the Apex Court was made by Justice H. R. Khanna, who himself was superseded, in his book,Neither Roses Nor Thorns, when he recalled, “one of the new trends was the change in the approach of the Court with a view to give tilt in favour of upholding the orders of the Government. Under the cover of high sounding words like social justice the Court passed orders, the effect of which was to unsettle settled principles and dilute or undo the dicta laid down in the earlier cases.”

Access to justice is basic to human rights and Directive Principles of State Policy become ropes of sand, "teasing illusion and promise of unreality", unless there is effective means for the common people to reach the court, seek remedy and enjoy the fruits of law and justice. Undeniably, the most strategic office in the overall scheme of governance of the country is the Judiciary. How Judges are appointed, transferred and elevated, surely becomes a matter of national concern. Forensic supremacy and operational independence emphasize the necessity for making the selection of the 'robed brethren' a matter of transparency and for some form of public opportunity to know and be heard. An old Roman adage runs; "Whatever touches us all should be decided by all." Not in that extreme elective form as in some States in United States of America but in a manner that involves some participation, publicity and surrogacy, which brings into the process of choice of Judges an element of democracy. The Collegium is a constitutional conundrum which is the product of the Judiciary, not even mentioned in out long Constitution, nor is it an institutional functionary.

Questions continue to be asked a year after that press conference whether the current Chief Justice of India Ranjan Gogoi, who was part of that presser, has taken the necessary steps to inspire the confidence of the public in the Court and made it more transparent.

The recent appointments to Hon'ble Supreme Court of India are likely to add to the misgivings about the functioning of the Collegium and the Apex Court.

Written by: Dinesh Singh Chauhan - Advocate
High Court of Judicature, J&K.