Are our courts- Courts of
Law? Courts of Justice? Or, just Courts of Judges and their whims and fancies?
My experience and studies tell me that they are Courts of Judges and their
whims and fancies. About my experiences later.
In Part 1 of this series I
had analyzed how a judge who had retired on attaining the age of 62 years on
the eve of his 63rd birthday (62nd birth anniversary)
claimed an enhancement of pension, due on attaining the age of 80 years, from
his 80th birthday (79th birth anniversary) on the ground
that he had entered 80th year of age that day. He won his case in
the Gauhati High Court, where he had been an Acting Chief Justice earlier, and
that decision was upheld by the apex court too, without much ado.
So, let me begin this part
with another case involving date of birth. General V K Singh, who had retired
as the Chief of Army Staff, before joining politics and is currently a Minister
of State in the Narendra Modi led Government, had joined the National Defense
Academy on passing his Matriculation Exam but before he got his certificate.
His school head had filled up the application and there was an error in the
year that had been filled in. By that he was one year older than he was. His
father had been an army officer and he had had his birth in a military
hospital. There was no way that there could be any confusion in the actual date
of birth. Anyhow, this error was noted even when he was in the NDA and
corrected. All his subsequent documents had this correct date of birth.
During the Man Mohan Singh
led Government at the Centre, General V K Singh was a Lieutenant General and
was in the run for commanding an Army Command, in the same rank. It was then
that his date of birth became an issue. Somebody brought out the fact that the
date of birth in the application he had submitted while joining the NDA showed
him to be one year older. His boss summoned him and said that this duplicity in
his date of birth records would cost him his higher appointment unless he accepted
the older age. It was certainly a weird demand because we all know that the
Matriculation Certificate (now the Secondary School Leaving Certificate) is the
acknowledged proof for date of birth for all official purposes and as per that
document and all his other official documents his date of birth was, legally,
crystal clear. Sensing the mood of the moment, Lt Gen V K Singh, reportedly
gave an undertaking, in writing, that he would accept the decision of his
superior officer if it was in the interest of the nation/service.
He went on to become the
Chief of Army Staff and got on the wrong side of the then Government due to
many reasons, including the effort to bribe him in the purchase of Tatra
Vehicles which he had himself brought to the notice of the then Defense
Minister and demanded a CBI inquiry. And then there were planted reports in the
media of a move by the army to stage a coup and moving its columns to Delhi.
The General himself has narrated, in his book ‘Courage and Conviction’, how he
had refused to deploy the army in Chattisgarh to counter naxals. Whatever be
those reasons, the government now wanted him out and retire as per his date of
birth that was mentioned in his application for joining NDA. But instead of
showing how it would be in the interest of the nation what was projected was a
chain of succession theory, whatever that was. And for the first time a Chief
of Army Staff took his Government to court on the simple issue of his date of
birth. Shockingly, the apex court rejected his petition on the specious ground
that he had accepted his official date of birth as that which had been
mentioned in his application to join NDA.
Replying to media persons,
who had sought his reaction to the judgement, he had said that he did not get
justice. Thereafter, another media report informed us that the court had
threatened him with a contempt of court case.
One of my favorite quotes
about the judiciary is from the Report of the National Commission for the
review of the working of the Constitution (popularly known as Constitution
Review Commission, CRC, for short). Before I reproduce that quote, here is the
composition of this Commission.
The 11 member commission
was headed by a former Chief Justice of India, M N Venkatachaliah
and of the remaining 10 members, 3 (B.P. Jeevan Reddy, R.S. Sarkaria and
Kottapalli Punnayya) had been judges of the Supreme Court/High Courts, 2 (Soli
J. Sorabjee and K. Parasaran) were senior advocates, 2 (P.A.Sangma and Sumitra
G. Kulkarni) were political nominees, 2 (Dr.Subhash C. Kashyap and Dr. Abid
Hussain) had been bureaucrats and just one (C.R. Irani) was a representative
from the media!
This commission had
reported that 'Judicial system has not been able to meet even the modest
expectations of the society. Its delays
and costs are frustrating, its processes slow and uncertain. People are pushed to seek recourse to
extra-legal methods for relief. Trial
system both on the civil and criminal side has utterly broken down.' Also,
'Thus we have arrived at a situation in the judicial administration where
courts are deemed to exist for judges and lawyers and not for the public
seeking justice'.
For me it is not just a
quotable quote. It is the truth, the whole truth and nothing but the truth.
We all know how the apex
court had trashed the National Judicial Appointment Commission Act. But even
those who know this may not know how the judiciary had usurped this power from
the Executive. We shall go through that later.
For now, let us look at what the CRC had suggested for appointing judges
to our higher courts.
This is what Dr Subash
Kashyap, one of the two bureaucrats, has recorded in his Notes:
Attention is also invited
to the decision taken by the Commission at its 14th Meeting held on 14-18 December
2001. Para 16 of the minutes records
that "There shall be a National Judicial Commission for making
recommendation as to the appointment of a Judge of the Supreme Court (other
than the Chief Justice of India), a Chief Justice of a High Court and a Judge
of any High Court."
"The composition of
the National Judicial Commission would be as under:
a) The Vice-President of India
b) The Chief Justice of India
c) Two senior-most Judges of the Supreme Court, next
to the Chief Justice
d) The Union Minister for Law & Justice."
However, the composition
of the NJC as recommended by the Commission in its Final Report is:
The National Judicial
Commission for appointment of judges of the Supreme Court shall comprise of: -
(1) The Chief Justice of India
(2) Two senior most judges of the Supreme Court
(3) The Union Minister for Law and Justice
(4) One eminent person nominated by the President
after consulting the Chief Justice of India
One
needs to observe the following:
-
The Commission
was to be headed by the Vice President. It has been changed to the Chief
Justice of India
-
The Union
Minister of Law continues to be a member
-
One eminent
person, nominated by the President after consulting the Chief Justice of India,
has been brought in as a member in the place of the Vice President who was to
be Chairperson.
Now,
those who know the history of how the unconstitutional Collegium, for
appointment and transfer of judges of our higher courts, became
institutionalized, may be able to understand the subterfuge involved in the
last proposition. It had begun with
the apex court’s invention of a new meaning for the commonly understood word
‘consultation’ in Article 124(2) of the Constitution. It states:
Every
Judge of the Supreme Court shall be appointed by the President by warrant under
his hand and seal after consultation with such of the Judges of the Supreme
Court and of the High Courts in the States as the President may deem necessary
for the purpose and shall hold office until he attains the age of sixty-five
years:
Provided
that in the case of appointment of a Judge other than the Chief Justice, the
Chief Justice of India shall always be consulted:
All the dictionaries I
have consulted on line- Cambridge, Collins, Merriam Webster and Oxford- all
provide the same meaning for consultation, that is A meeting with an expert, such as a
medical doctor, in order to seek advice. Nowhere has it meant that such advice would be binding on the one who
seeks the advice. But that is exactly what the apex court declared while
beginning to usurp the powers of the Executive to appoint judges of the high
courts and the apex court.
But that is not the end of
the narrative.
Dr Subash Kashyap had
summed up the work of the Commission itself as:
'While no comments are being made on what went wrong in the procedure,
priorities and perspective, it may be put on record that several of the
recommendations now forming part of the report go directly counter to the clear
decisions of the Commission on which the unanimously adopted draft report of
the Drafting and Editorial Committee was based'.
And Ms Sumitra Kulkarni,
one of the two politicians and the only woman member in the Commission, has
concluded as follows:
1. I believe in a Unified
and truly Secular India. However, the
Commission debates seemed often to reduce the Constitution to being a platform
for divisiveness and not unification.
2. The Commission did not
initiate or promote sincere debate in the public with regards to the issues that
it was contemplating. The efforts was
more to "evade and defer" instead of to "identify issues, table
them for debate and to deal with them".
Just
for the record- M N Venkatachaliah does not figure in the list of 8 corrupt
Chief Justices of India, which Adv Prashant Bhushan had submitted to the apex
court. (https://www.outlookindia.com/website/story/eight-of-the-last-sixteen-chief-justices-of-india-were-definitely-corrupt/267128
)
Before
concluding this part, let us recapitulate how the unconstitutional Collegium
for appointment judges of the high courts and the Supreme Court became institutionalized.
This is the essence of a report that appeared on 15 Sep 2019 in The Hindu at https://www.thehindu.com/news/national/why-is-the-collegium-of-judges-in-the-spotlight/article29418574.ece:
The ‘First
Judges Case’ (1981) ruled that the “consultation” with the CJI in the matter of
appointments must be full and effective. However, it rejected the idea that the
CJI’s opinion, albeit carrying great weight, should have primacy.
The Second
Judges Case (1993) introduced the Collegium system, holding that “consultation”
really meant “concurrence”. It added that it was not the CJI’s individual
opinion, but an institutional opinion formed in consultation with the two
senior-most judges in the Supreme Court. On a Presidential Reference for its
opinion, the Supreme Court, in the Third Judges Case (1998) expanded the
Collegium to a five-member body, comprising the CJI and four of his senior-most
colleagues.
High Court judges are recommended by a
Collegium comprising the CJI and two senior-most judges. The proposal, however,
is initiated by the Chief Justice of the High Court concerned in consultation
with two senior-most colleagues. The recommendation is sent to the Chief
Minister, who advises the Governor to send the proposal to the Union Law
Minister.
For other judges of the top court, the
proposal is initiated by the CJI. The CJI consults the rest of the Collegium
members, as well as the senior-most judge of the court hailing from the High
Court to which the recommended person belongs. The Collegium sends the
recommendation to the Law Minister, who forwards it to the Prime Minister to
advise the President.
In 2014, through the
Constitution 99th Amendment Act, a National Judicial Appointments
Commission was constituted with the CJI as Chairman, 2 senior-most judges of
the apex court, Union Law Minister and 2 eminent persons as members. These
eminent persons were to be selected by a committee comprising of CJI, Prime
Minister and Leader of the Opposition/single largest party in Opposition and
one of them must be from the SC/ST or OBC category or a woman.
It was struck down by the apex court in 2015
claiming it was unconstitutional. Looks like ‘constitutional’ also has been
redefined by our learned judges.
P M Ravindran
21 Sep 2021
