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Why a Sitting Judge of the Supreme Court is Fighting to Reform the Collegium


September 04, 2016

Justice Chelameswar says the practice of not keeping records of collegium meetings hurts the judiciary’s credibility and its relations with the executive.

New Delhi: Justice Jasti Chelameswar’s decision to make public his problems with the collegium – the Supreme Court group that meets to recommend appointments and transfers of judges – shows that he is prepared for a long internal fight.

Having observed the dynamics of the collegium from the outside for the past five years and then as an insider for the last eight months, Chelameswar is likely to take steps, albeit cautious ones, to make the collegium’s functioning more transparent, according to sources.

Initially, Chelameswar decided that he would not release his four-page letter to T.S. Thakur, Chief Justice of India (CJI), to the media since he wanted to avoid aggravating the differences between him and the rest of the collegium and also did not want to sideline the main issue at hand – institutional reform. However, he decided to share his concerns publicly in order to ensure proper public appreciation for the issues he has raised.

No minutes, ever

First on the list of issues is that the collegium, the body responsible for recommending judges for appointments and transfers in the higher judiciary – has never maintained a record of the minutes of its meetings. Since the collegium was constituted, it has functioned without any record of what the five-member collegium’s individual members have said during their deliberations.

Chelameswar has pointed out that the lack of record means that the CJI can present the collegium’s opinions to the government as unanimous decisions and deny the existence of any dissent within the body without any proof to show otherwise.

This lack of record strikes at the root of the Supreme Court’s nine-judge bench’s ruling in the Second Judges case in 1993, which created the collegium. The collegium, then comprising three of the senior-most judges of the Supreme Court including the CJI, was created, in order to make the president’s consultation with the CJI, as envisaged under Article 124, broad-based. Another bench increased the size of this collegium to five judges in the Third Judges case in 1998.

As an insider in the collegium, Chelameswar is not referring to a hypothetical possibility. Although he is currently reluctant to share the details of such aberrations, sources insist that Chelameswar has made these comments keeping in mind incidents from the recent past that he believes marred the collective functioning of the collegium. His observations also raise the question of whether Thakur ever inadvertently denied dissenting opinions within the collegium while communicating with the government.

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