A respected high court chief justice resigns in protest over a humiliating transfer to a much smaller court. Advocates’ associations in two states go on strike over the transfer of others. The sixth senior-most Supreme Court
judge has written requesting the collegium to respect seniority in elevating high court judges to the apex court after the third senior-most high court judge in nationwide seniority is overlooked for elevation to the Supreme Court
in favour of a judge who is 42nd in the rankings. The Supreme Court
collegium has been no stranger to controversy over appointments to the higher judiciary.
But the recent developments have been serious enough to draw a rebuke from former Supreme Court judge Madan B Lokur in a signed article in The Economic Times. Justice Lokur, who retired from the Supreme Court in December last year, has pointed to the arbitrary and non-transparent nature of the collegium’s functioning. He is currently serving on the Supreme Court of Fiji, the first Indian to be appointed to that position. But his credentials in the Indian judicial system make him uniquely positioned to comment on the current set of controversies over appointments and transfers in the higher judiciary. For one, he has a history of speaking truth to power, being one of the four “rebel” Supreme Court judges who held an unprecedented press conference in January last year to protest the manner in which then Chief Justice Dipak Misra was allocating critical cases. The year before, he had been part of a four-judge panel, which included Justice Misra and current Chief Justice Ranjan Gogoi, who finalised a Memorandum of Procedure (MoP) to govern appointments and transfers in the higher judiciary. This came two years after the apex court declared as “unconstitutional and void” the constitutional amendment Bill that the Narendra Modi government introduced in 2014 mandating a National Judicial Appointments Commission (NJAC) in place of the current practice of the judge-controlled collegium.
The MoP is yet to be approved by the government but the collegium considered it as final and resolved to abide by it. Any change to this MoP has to be cleared “unanimously” by five of its senior-most judges. There is no indication that the deviations from the MoP have gone through this process of checks and balances. Final collegium decisions have been put up on the Supreme Court website with no explanation on the nature of discussion preceding them. Justice Lokur likens these decisions to the “Chancellor’s Foot syndrome,” a reference to an ironic observation by a 17th century jurist about the arbitrariness of the English judicial system. His article also invokes a song by Nobel laureate and singer-songwriter Bob Dylan — Ballad of a Thin Man —to suggest that there is more to these deviations than meets the eye. “Something is happening here but you don’t know what it is,” the line goes. The oblique but unmistakable message from Mr Lokur’s article is serious. In 2015, the Supreme Court staved off a greater executive role in judicial appointments via the NJAC. But the patently questionable decisions of recent months have immeasurably weakened its case for whatever independence it enjoys. Transparency and consistency are the cornerstones of a robust judicial system. The Supreme Court should follow those basic precepts.