NEW DELHI: How many sitting judges of the Supreme Court does a non-lawyer know by name? Every year several Judges retire from the Supreme Court unsung. Overnight, they cease to be a part of an institution they helped build for decades. How often does one see retired judges of the apex court in television studios? Judges disembark to the highest court from various parts of the country and belong to different philosophical schools.

What binds the judges and separates the judiciary from other institutions is judicial discipline, developed on a code of restraint and silence. Judges do not speak individually but collectively and for the institution through judgments of law. Judicial discipline is fundamental for providing justice and also forms the foundation of an independent judiciary.

This week one of the five senior Judges and a member of the collegium (five senior most judges appointing judges) has come out in the media and alleged that the collegium lacks transparency when selecting Judges. A sitting Judge going public on any issue is unprecedented, and that too on the critical issue of the internal workings of the collegium. As Fali Nariman put gently, this is perturbing, more so in view of the government’s recent actions in delaying the filling up of vacancies (explained in previous piece “listen to chief justice”).

Of course, the media is pontificating on how the statements of the Judge are revolutionary and will help make the judiciary be more transparent. The government, I am sure, will leverage this incident to push the agenda of political interference in appointments, a desire that has grown stronger after the NJAC judgment.

Let us understand the position of Justice Chelameswar and why he believes such a drastic step is required. Let us go back to his dissenting judgment in the NJAC case. His underlying philosophical reason is clearly articulated in his dissent; it is (see paragraph 1212 of the judgment) that if in the Parliament’s wisdom they have exercised their constituent power (authority to amend the constitution) for reform then the judiciary must respect this wisdom.

It is clear that he sees interference in the 99th amendment as unwarranted and reasons that the principle of the independence of the judiciary would remain unaffected by executive presence in the selection process. Hence, his opinion is that the collegium system is a constitutional aberration and cannot be preserved as part of the basic structure of the constitution on the premise that it protects the independence of the judiciary. Of course, let us not forget the pre collegium era lasted close to 50 years and now the problems of the previous system are conveniently being forgotten. I have examined some of the events leading up to the necessity of the collegium system here.

This strain of thought of Justice Chelameswar is also evident in the Rajbala case where the constitutionality of certain provisions restricting the right to stand for elections was challenged. The Haryana Government made it mandatory for a person to have a toilet, have certain educational qualifications, amongst other requirements, to be eligible for contesting elections. Here again, even though, only executive and not constituent power was involved, Justice Chelameswar’s underlying theme was that the Court should not have any value judgment on the wisdom of the elected. He went on to uphold the dis-qualifications formulated by the Haryana Government as not affecting the constitutional guarantee of equality (Article 14)

Anyhow, four fellow judges had struck down the 99th constitutional amendment finding it in violation of the principle of an independent judiciary. This then became the binding view of the Court. So now a year later, a boycott against the collegium in view of the final judgment of the Apex Court portends ill for institutional harmony.

What is the primary issue raised by the Judge? That written reasons must be given for appointing or rejecting judges; that is there must be a record for the public. It is well known that the collegium must select from among Chief Justices of various federal High Courts and it would serve neither justice nor transparency to bring to the public glare the reasons for choosing one senior judge above another.

In fact, it is the antithesis to equality and fraternity among judges. What the recent statements of the judge could do is tarnish the fellow member judges of the collegium. Such a perception against sitting judges shakes the very foundation of trust in the rule of law. That is why judicial confidentiality and anonymity are as important as transparency. In fact this is a reason why most states in the United States of America still conduct disciplinary probes against judges under confidentiality.

Also one wonders whether post retirement appointments of judges, as heads of tribunals and governors of states are likely to be for more objective reasons when there is executive influence in the selection process of justices?

The Constitution Bench of the Supreme Court during the NJAC hearing saw former judges personally attacked and post the judgment, the Court was lectured by members of the government on how judges are acting against the will of the people. The court maintained a dignified silence and further opened its door for changes via the memorandum of procedure. Now through this procedure the government is seeking to have a secretariat for judges under the ministry of law and justice. And further batting for seniority as the basis for elevation, leaving the collegium little choice in selection according to merit. Should the judiciary just accept what is dictated by the government or be blackmailed, as being seen to be working against the people’s will?

Let us not forget these ministers hailed the same court when the 2G and Coal judgments shook the foundation of the previous political regime. The judgments were seen as a testimony to an independent judiciary and their constitutional role as an anti majoritarian institution was vindicated. Of course, now they want the judiciary’s head.

As Nariman has written, now more than ever before the judges must stand together as the citadel that never falls except from within. Sure any system must improve and evolve. Former Chief Justice Lodha has also articulated that there must be discussion and a consensus amongst the senior judges and the executive on how to bring change. However, the collegium should not fall victim to pressures of the mob and give way to institutional compromises that will take away from the constitutional promise of an independent and brave judiciary.