“All power could be misused including judicial power” Justice J Chelameswar said questioning Supreme Court’s reluctance to share the power to appoint judges to the higher judiciary with the legislature and executive.
The lone dissenting judge in the five-judge Constitutional bench, Justice Chelameswar, opined that, “Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks”.
“To believe that members of the judiciary alone could bring valuable inputs to the appointment process requires great conceit and disrespect for the civil society,” he said adding that it was time for the judiciary to become more transparent in its appointment process.
Upholding the National Judicial Appointments Commission (NJAC) Act, Justice Chelameswar said the Constitution provides “extraordinary safeguards and privileges” for judges to “insulate” them political interference.
A judge’s appointment and continuance in office is not subject to any election process and the termination of judicial appointment during subsistence of the tenure is made virtually impossible, Justice Chelameswar said.
“In this context, to hold that it should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy,” he said in his separate judgement.
“The Constitution therefore provides extraordinary safeguards and privileges for Judges of Constitutional courts to insulate them substantially from the possibility of interference by the political-executive as well as elected majorities of the people’s representatives,” he added.
He concurred with Attorney General Mukul Rohatgi’s argument that the basic feature of the Constitution is not primacy of the opinion of the CJI but lies in “non investiture” of absolute power in the President to choose and appoint judges.
Backing the NJAC Act, Justice Chelameswar said, “The remedy is not to deny grant of power but to structure it so as to eliminate the potential for abuse”.
He further reasoned that the power to nominate two eminent persons – as part of the NJAC – is conferred upon three high constitutional functionaries – the Prime Minister, the Leader of the Opposition and the CJI, which brought in an element of checks and balances.
He disputed the accountability of the collegiums system saying that in the last 20 years since its advent, number of recommendations made by the collegia of High Courts were rejected by the collegium of the Supreme Court.
There were cases where the apex court collegium “retraced its steps” after rejecting recommendations of a particular name suggested by the High Court collegium giving scope for a great deal of “speculation”.
Justice Chelameswar also spoke of the “fiasco” created by collegium in appointment of Justice PD Dinakaran in SC and appointment of a judge as a permanent judge of the Madras high court.
“The fiasco created in Dinakaran case and Shanti Bhushan case would justify the participation of the members of the civil society in the process to eliminate from the selection process the maladies involved in the process. The abovementioned two are not the only cases where the system failed,” he said.
“The (collegium) 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 good for the people of this country,” he added.