The other day — 7th of this month — noted jurist and senior advocate Sri Fali S Nariman proffered a piece of advice, which he called an unsolicited suggestion, to the Supreme Court: the citadel never falls except from within. It is heartening to see someone suggesting or advising an institution constitutionally mandated under Article 143 to advise the nation. Advice to the adviser. This is an uncalled for reply to the unsolicited suggestion.

Justice Chelameswar, one of the five judges that constitute the Collegium, recently broke ranks and wrote to the Chief Justice of India (CJI) about the rot in the system: read it as Collegium. He has not gone public, though; the press pried into it, as it has been expected to, and he confirmed it later.

To begin with, Nariman refers to the judge as No. 5 in the ‘hierarchy’. Conventionally, but not constitutionally, we call all judges other than the chief justice puisne judges. Puisne literally means ‘born later’- a concept we have adopted from England, a nation without a constitution and without the concept of separation of powers. Americans, on the other hand, call them ‘associate judges’, perhaps, a more appropriate term. Though the Constitution has not designed this hierarchy, we are so used to a system of hierarchy that we – the subjects for centuries – refuse to believe in the possibility of having a system that is egalitarian. Though originally the system of Collegium is contrived to operate in a limited sphere, now, practically, the entire system either in the Supreme Court or in the High Courts functions to the exclusion of all other judges save the Collegium – in every sphere.

Nariman culls out from Chelameswar J’s missive to the CJI these points supposedly raised by the judge: (1) that the first four members of the Collegium were not unduly concerned about “transparency”; (2) that their response to this charge must remain mute since the time-honoured principle of judicial rectitude prevents these four judges from going public; (3) the public has only one side of the picture, and can never have the other side in a debate about the efficiency or otherwise of the Collegium system. Then, he sounds apocalyptic with a warning that the governments in power ‘simply rejoice and even attempt to step in whenever there are dissensions amongst members of the higher judiciary.’

After citing two infamous instances in the Indian judicial history of executive engineered judicial coups — supersession of the senior judges to the post of CJI — Nariman pirouettes to the point that “if a judge in the Collegium doesn’t like the way it functions (for lack of transparency or any other) he can quit and then complain about why he quit. People would then understand him better.” In support, he cites a historical instance: Chief Justice Munir’s advice, said to be wise and prophetic. May be.

The line between naïveté and a grand moral stand is very thin; what is a moral stand in one age may be sheer naïveté in another. O tempora o mores! As Nariman has pointed out, the strong executive once bypassed three judges; they all resigned. That itself was a protest, loud and clear. But nothing changed. Then one more time the executive exulted in repeating it. Morality is divorced from politics – especially from power. It’s Machiavellian, even if you trust Chanakya. Twice bitten, the judiciary has become proverbially shy: It has struck back resulting in the Second Judges case.

In the end, Nariman bemoaned that the citadel never falls except from within.

Rivers breach when they take more than they can hold – water; nations fail when they have more than they can do without – moral decadence. And institutions collapse when they have less than they can afford to lose – integrity. Similarly, citadels fall when their foundations are weakened, or their walls are eaten away. By moral corrosion. It starts naturally from within. Let’s see how it happens.

The Executive had been strong for the better part of the independent Indian era. In four decades, the constitutional courts have seen many judges. In 1990s, with the coalition eras, the Judiciary, licking its wounds till then, seized the opportunity. It struck back. The result is S. C. Advocates on Record Association v. Union of India (the Second Judges Case), a judgement which is more reactionary than reformatory.  In 1991, first, a three-Judge Bench of the Supreme Court in Subhash Sharma v. Union of India tested the ground with a flourish of rhetoric. It has said, “An independent non-political judiciary is crucial to the sustenance of our chosen political system.

The vitality of the democratic process, the ideals of social and economic egalitarianism, the imperatives of a socio-economic transformation envisioned by the Constitution as well as the Rule of Law and great values of liberty and equality are all dependent on the tone of the judiciary. The quality of the judiciary cannot remain unaffected, in turn, by the process of selection of judges.”

Close on the heels of Subhash Sharma came the Second Judges Case with more rhetoric, of course. A diehard textualist like Antonin Scalia, the recently departed judge of the American Supreme Court, would have died then itself if he had been a party to it. For the linguistic gymnastics of the Supreme Court in the Second Judges case are read to be believed. The Nine-Judge Bench has peeled back linguistic layer after linguistic layer; an innocuous term ‘consultation’ has been, as a result, turned, twisted, and tamed into what the Supreme Court wanted it to mean: concurrence. A judicial discourse  descending into rhetoric always sounds soothing, but works ominously and insidiously too.

By whatever measure, at last, the judges ensconced themselves in a position of power reducing the executive to a cipher in the judicial affairs. If we see at the profiles of the judges appointed by the Executive and the Judiciary, unless we are uncharitable to the truth, we cannot see much of a qualitative difference – the scale may even slightly tilt in favour of the executive appointees’ favour. No system can have an intrinsic merit apart from the people that run it. Be it the executive or the judiciary, it is as good or as bad as its constituents. But nobody can deny one naked truth: the selection of judges under the Collegium system has given a free run to nepotism and cronyism. You think of the judges — both in the Supreme Court and in High Courts — with bonding to their predecessors in position. It can be either by propinquity or by professional allegiance.

After all is said and done, the Collegium system has come to stay. That is the law of the land for the Apex Court has declared thus: Article 141 of the Constitution is inescapable. Now we may see how it has fared. This helps us to know whether Chelameswar J is tilting at the wind mills or merely fighting the phantoms.

Indisputably the Collegium maintains no records; records nothing either for the present or for the posterity. It assigns no reasons for its decisions; it can make or mar the careers. It is just a number game. If three of five are a clique, they can stifle dissent. What can be the underlying cause for this comradery? Just common interest; mutual accommodation; or worse still, a common target. That could be a judge of a High Court or an aspiring candidate. Claims for the judicial post are rejected — without assigning a reason. High Court judges are transferred – without assigning a reason. If a candidate is rejected without a reason, could the High Court Collegium ever have a method or manner of knowing who should be selected? Transferring a judge — in fact, in most cases — is a euphemistic effort to punish a putatively corrupt judge.

May I ask, why is this euphemism? Why is this shadow boxing? The transferred judge, after all, deals with the same currency in the transferred state, too. Why not the Collegium name the judge, shame him if necessary, and get him impeached if possible? Justice Chelameswar railed against these, hasn’t he?

Given the doubts expressed by the Executive on certain aspects of the Second Judges case, the Supreme Court rendered what is called the Third Judges case, under its advisory jurisdiction. The Nine-Judge Bench has emphatically declared that ‘the opinion of all members of the Collegium in respect of each recommendation should be in writing.’ An appointment can be made only if there is a unanimous recommendation or reiteration if the Government objects. Then, how about this ganging up of majority, a la a clique?

Nariman suggests that a dissenting judge should resign and protest. Naïve or innovative the suggestion is; let us take it forward. If a system exists, all along, with all its flaws, then someone consciously gets into it; he may not have much of an option: He has to take it as it is or leave it. Here, the system, whatever its merit, has been designed – I call it contrived – with inbuilt safeguards. Its stakeholders down the line subvert it and make it anything but fair; opacity, unaccountability, whimsicality – just stated asyndetically for the list is endless – being its hallmarks. If one quits and questions, he is disgruntled and querulous; a renegade on the run with no responsibility. Why did he not fight it instead of running away from responsibility? Isn’t that the question we pose?

If one questions the ills or evils, does it amount to wrecking the system from within? Chelameswar J has heard for five years, seen it for eight months, and, after having a ringside view, raised an alarm. From the news reports we can gather, he only asked his brethren what the brethren across the nation in the constitutional courts are repeatedly asking the other two branches — the Legislature and the Executive: Be fair, be accountable, and be exemplary. Nothing more.

For sure, Nariman can rest assured. The rot is from the core, not to the core – at least, not yet. It takes some more time; till then the citadel won’t fall. He can merrily practice, for long, too long (as he himself put it) God willing. He can, also, take heart that, among the multitude, it is only one voice, the rest of the brethren are happy with the status quoism; they shrug off and remain dismissive.

May be, the Collegium is the Trojan Horse brought into the judicial citadel by the judges themselves. Time will tell.

Harpreet Giani

Practising advocate in India and Dubai DIFC and a practising barrister in England & Wales

Originally published here