The title of the article might appear like an oxymoron, but recent developments in the higher judiciary of the world’s largest democracy have brought forth the underbelly of this “independent” institution. The transfer of Justice Vijaya Tahliramani from the Madras High Court to the Meghalaya High Court was recommended by the Collegium ‘for the better administration of justice’. However, the recommendation has not been substantiated by any possible reasons, besides the mechanically written words “for the better administration of justice”, which are repeated in all the recommendations by the Collegium. If any government department had given such a mechanical reason for any decision making, the same would have surely been thrown out lock stock and barrel by the judiciary. This has set the rumor mills buzzing with all sorts of conjectures, thereby denting the image of the highest court of the land in the minds of the common people.
The Collegium system does not find a mention in the Constitution of India and is the result of three judgments by the Supreme Court of India, collectively known as “three judges case”. The idea behind the creation of the Collegium system was to have no interference from the executive or legislature in the appointment of judges so that judicial independence can be achieved. It is a system comprising the Chief Justice of India and the four senior-most judges of the Supreme Court under which appointment of Judges to the High Court, their elevation as Chief Justice of High Court’s and to the Supreme Court and transfer of High Court judges and Chief Justices is done. It is an irony that the institution of the Collegium system which was created by the Hon’ble Supreme Court to wade off any possible interference by the executive in the affairs of the judiciary has itself become bane for the independent judiciary.
The separation of powers doctrine as espoused by Montesquieu only fathomed that the three pillars of the democracy have to be separate and there is no concentration of power in any institution. The judiciary had a special role keeping a check on the power of the other two. However, if the Collegium system of the 5 senior most judges of the Supreme Court be the sole repository of all the wisdom for appointment and transfer of judges in the higher judiciary without any check on their power, then surely the system is bound to doom.
It needs to be specifically highlighted that the High Courts are technically not “under” the Supreme Court and are independent constitutional institutions. Besides the difference in the age of retirement, which is 62 for a High Court and 65 for a Supreme Court Judge and difference in salary, both the Lordships at the High Court and Supreme Court enjoy similar power and privileges. The Collegium system vide the transfer of High Court Judges and appointment of Chief Justices at High Court is actually exercising powers akin to Article 227 which gives the High Courts the power of superintendence over all courts and tribunals throughout its territories. The difference in the status of a High Court Chief Justice and a Supreme Court Judge was not present at the start of the coming into force of the Constitution of India. Eminent jurist MC Chagla, who was the first Chief Justice of the Bombay High Court had refused to be elevated to the Supreme Court on the request of the first Chief Justice of India HJ Kania.
The common man in whom resides the ultimate sovereignty of the republic of India is absolutely clueless about the appointment and transfers in the higher judiciary. The average Indian can aspire to become India’s Prime Minister in a fair and transparent way by being the chosen leader of the party having absolute majority (50% + 1 of the total strength of the lower house), can clear the civil services exam and become the Foreign Secretary, Cabinet Secretary, DGP of a state but the appointments to the higher judiciary are hidden in dark secrecy. In the garb of judicial independence, the higher judiciary has begun to operate in silos without any check.
In a democracy governed by the Constitution and rule of law, the spirit of Constitutionalism should be the guide of the institutions including the higher Judiciary. Constitutionalism basically means that the power and authority of every institution is limited and is under some check. Unfortunately, the Collegium system’s operation and working leaves much to be desired for and the current state of affairs smacks of absolute power which runs contrary to the spirit of Constitutionalism. Before the systematic and complete overhaul of the Collegium system, at least the Collegium should disclose reasons in an objective manner without tinkering with the independence of the Judiciary in any way.
It is equally important that the transfer of Judges to the North East should not be a parking for the less efficient and those having been accused of corruption. The appointment and transfer of Judges in the higher judiciary is one of the most important reforms that needs to be taken for the healthy life of the Indian democracy. The mere simpliciter reason of “better administration of justice” needs more clarification and substance to ensure the trust of the citizenry on this pillar of Indian democracy. As the old adage goes, justice should not only be done but also seen to be done, similarly the transfer for better administration of justice should not only be done but also seen to be done.
DISCLAIMER : Views expressed above are the author’s own.