– Justice Retd. S.N. Dhingra

This situation is precarious for two reasons. For one, it reignites the altercation between the judiciary and the government over appointments and secondly because it will be interesting to see how far the new collegium goes to take on the government this time around.

Taking a different stand on whether a new collegium would guarantee fair appointments, retired Justice S.N. Dhingra who is currently heading a special investigation team on probing cases regarding the 1984 anti Sikh riots said that it won’t be able do much in creation of a system that is less opaque since there aren’t any internal standards of transparency to be followed. This would reflect more in certain appointments than others such as what happened with the elevation of Justice K.M. Joseph that went back and forth between the previous collegium and the BJP govt for nearly a year. In April, the government had rejected a recommendation by the then collegium for elevation of Justice K.M. Joseph who is currently the Chief Justice of the Uttarakhand high court as a judge of the Supreme Court. This manifested in an escalation of the conflict between the judiciary and the executive that had begun with the unprecedented press conference over selective allocation of cases by Chief Justice Dipak Misra.

Among reasons given by the government for rejection of Joseph’s name was adequate representation of the Kerala high court at the Supreme Court through presiding judge Justice Kurian Joseph as opposed to the non representation of scheduled castes and tribes and his place in the all India high court judges’ seniority list. In May, the then collegium unanimously agreed in one of its meetings to reiterate Justice K.M. Joseph’s name for elevation to the government. The decision which came after months of meetings and deliberations between members of the previous collegium was considered afresh by the new collegium leading to a waste in the precious judicial time invested before.After seven months of sitting on its decision, the government finally agreed to elevate him to the Supreme Court, in line with the convention laid under the memorandum of procedure.

Change in collegium members also gains importance in light of the unprecedented press conference held by four out of five members of the previous collegium on 12 January which exposed the judiciary’s internal turmoil under the leadership of Chief justice Dipak Misra. The four senior judges, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph, after submitting a letter of protest to the chief justice earlier that day addressed the mediaover the conflict brewing at the highest court and alleged that the chief justice was not following the established rules for allocation of cases among judges. He was keeping out the senior judges from hearing sensitive and important cases by allotting them to other handpicked judges leading to non transparency in the system, it was claimed. This event was historic as it not only exposed the judiciary’s dirty politics which until now was strictly withheld from public discourse on grounds of maintaining the independence of the judiciary, but also gave political parties a chance to take sides.

Through this it became clear about the sides each of these judges in the previous collegium had chosen. It was an out and out revolt against the Chief Justice by the four senior judges who went public with their grievances. The public’s confidence in the establishment stood shattered. At that time four out of five collegiums members challenged the toxic atmosphere that has been building at the Supreme Court but with Justice Sikri stepping in, one can expect a definitive shift in this dynamics. Either the dynamics between new members will repair the earlier damage or it can damage the situation further.

The judiciary’s predicament however, does not end here. Three judges who are currently part of the collegium, i.e., the Chief Justice Dipak Misra, and Justices Madan B. Lokur, Kurian Joseph are set to retire by year end. Retirement of the Chief Justice Dipak Misra in October will see him replaced by sitting judge Justice S.A. Bobde. Similarly, when Justice Kurian Joseph retires in November, N.V. Ramana will take his place and Justice Lokur’s retirement in December will see Justice A.K. Mishra’s induction into the collegium.

Successive retirements will translate into disturbing the status quo between the collegium members at a certain point in time. With a new member joining in, it will disrupt the momentum of judicial appointments as certain decisions would have to be reconsidered owing to the shuffle. For example, a set of collegiums members who may have agreed to send a certain judge’s name for elevation to the government may have to revisit its decisionwhen the constitution of the collegium changes if the new member opposes it.

“I cannot see a new collegium making much difference to the “process” of judicial appointments. Only the “who” of the collegium will change because of new judges joining and the extent to the change in appointment process will be limited to the preferences of the new members. The suggestions for judicial appointments will be based on the names they recommend based on who they deem fit to be considered for appointment”, said retired Justice Dhingra said. With Justice A.K. Mishra slated to form part of the collegium after Justice Lokur retires will present its own distinct challenges. Justice Mishra who at one point was assigned to hear the case regarding the mysterious death of Justice B.H. Loya brought by Congress partisan Tehseen Poonawalla has been alleged to hold close relations with the BJP party. If this were to be true, his political leanings may come in the way of him being able to take transparent and bias free decisions as part of the collegium. It could possibly expand the rift between the judiciary and the executive over judicial appointments and result in a hostile situation.

If the timing of clearing Justice Joseph’s appointment after a significant delay and the government’s fresh stint of leaving the issue of constitutional validity of Section 377 criminalizing same-sex acts to the wisdom of the Supreme Court as the country lies on the brink of doing away with the colonial legal provision are of any indication, the BJP government is already adopting a proactive approach in presenting a congenial front with the judiciary.

The collegium might become more agreeable now with the change in composition. As per successive judgments, the most recent one delivered on 5th July, a bench of AK Sikri and Ashok Bhushan, have upheld the role of the CJI as master of the roster. This bench was bound by earlier judgments, including one delivered 3 months ago, by a bench of CJI and two other judges which had also upheld the role of CJI as master of the roster. Still, the fact that AK Sikri has given this judgment, it is unlikely that he would have a grievance in this regard, as opposed to the other 3 judges on the collegium who went public with their concerns. A more agreeable collegium could potentially mean more names being cleared for judicial appointments, though it is not clear whether the press conference had any impact on the collegium with respect to its judicial appointment recommendation function.