Justice Chelameswar opts out of collegium

He was the lone dissenting judge on the five-judge Constitution Bench which scrapped the NJAC law passed by Parliament.

Updated - November 28, 2021 07:41 am IST

Published - September 02, 2016 11:49 pm IST - NEW DELHI

Justice J. Chelameswar.

Justice J. Chelameswar.

Justice J. Chelameswar, sitting Supreme Court judge, has sent a communication to the Chief Justice of India T.S. Thakur, expressing his disinclination to participate in the powerful Supreme Court collegium meetings.

“Such a communication has been sent. There is no reply,” Justice Chelameswar confirmed to The Hindu over phone on Friday.

Justice Chelameswar is the fifth seniormost judge in the Supreme Court hierarchy and is scheduled to retire on June 22, 2018.

He was the lone dissenting judge on the five-judge Constitution Bench led by Justice J.S. Khehar, which scrapped the >National Judicial Appointments Commission (NJAC) law passed by Parliament and upheld the collegium system of judicial appointments in a >majority judgment on October 16, 2015.

The difference of opinion within the Supreme Court collegium comes at a crucial time when the Centre’s latest draft Memorandum of Procedure (MoP) is pending with the collegium for its approval.

The judiciary is also in the middle of a crisis in the form of burgeoning judicial vacancies in the High Courts. The latest report issued by the Ministry of Law and Justice shows that vacancies in the High Courts have reached almost 45 per cent of the sanctioned strength of judges.

Of a total approved strength of 1,079 High Court judges, there are 485 vacancies. There are three vacancies in the Supreme Court itself.

It is the collegium which has to finally recommend the names of the High Court judges to the government.

In his eloquent dissenting judgment on NJAC, Justice Chelameswar strongly criticised the collegium system in vogue for the past 22 years as “absolutely opaque and inaccessible both to public and history, barring occasional leaks.”

Justice Chelameswar said: “Transparency is a vital factor in constitutional governance...Transparency is an aspect of rationality. The need for transparency is more in the case of an appointment process.”

The judge had observed that the collegium system was without accountability.

“The records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or does good for the people of this country,” Justice Chelameswar had written.

He found his fellow brother judges’ version of “primacy of judiciary” and total exclusion of the government from the judicial appointment process as “wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy.”

Now that Justice J. Chelameswar has opted out of the Collegium, here is an explainer on the NJAC vs Collegium debate:

What is the NJAC?

The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.

What is the Collegium system?

The Collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges. However, it has no place in the Indian Constitution. The system was evolved through Supreme Court judgments in the Three Judges Cases (October 28, 1998)

Why is Collegium system being criticised?

The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court.

The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.”

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