From dissent to disapproval

September 05, 2016 12:48 am | Updated November 28, 2021 07:41 am IST

History shows that principled dissent often leads to reform. >Justice J. Chelameswar has acted on his famous dissent. After disagreeing with the majority on a Constitution Bench that struck down the law enacted to establish a >National Judicial Appointments Commission, the judge, who is part of the five-member >Supreme Court collegium , has opted to keep out of its proceedings. In a letter to the Chief Justice, he is understood to have raised the issue of lack of transparency in the collegium’s functioning. His position is consistent with his dissenting judgment, in which he had spoken elaborately on the ills of the system. He had articulated his view that the executive cannot be shut out of judicial appointments, and that according primacy to the judiciary in the matter of appointments is not the only way to preserve its independence. Of course, Mr. Chelameswar’s latest missive is fraught with serious consequences. It has brought the focus again on the manner in which the judiciary functions on its administrative side. It may further delay the finalisation of the collegium’s view on the Memorandum of Procedure (MoP) for appointment and transfer of judges. With over 480 vacancies in the high courts and three in the Supreme Court, differences within the collegium may delay appointments, leading to significant alterations in the tenure and promotion prospects of judges and Chief Justices. Mr. Chelameswar’s boycott is undoubtedly based on principle; however, it raises the question whether he is not bound to be part of the collegium system as long as it is in force.

Irrespective of the serious reservations about the verdict in the NJAC case, the collegium system is here to stay. A fresh and transparent procedure for appointments was to be worked out by the executive. The Centre has sent its draft MoP, but it appears the collegium is reluctant to approve some of the clauses. The fact that the exact nature of the differences between them is not known only strengthens Mr. Chelameswar’s point about opacity. The revision process should not be kept under wraps. Public interest, especially the principle of judicial independence, will be better served if the procedure under preparation is thrown open to a debate. The judiciary showed the way forward by asking the Centre to prepare a revised memorandum. It should also end the impasse by taking an early call on firming up the procedure. In the light of a clear admission by the majority of judges in the NJAC case of the need for infusion of transparency, it will be welcome if Mr. Chelameswar’s position strengthens the support for reforming it.

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