SC Judges Appointed on Basis of “Impressions”: Justice Chelameswar

Speaking at a book launch, the Supreme Court judge called for more transparency in appointment of judges.

On Monday, 9 April, Justice Jasti Chelameswar, the second senior-most judge of the Supreme Court of India, asserted the need for transparency in judicial appointments, which he believes would lead to better assessment of the suitability of judges to preside over the higher courts.

With reference to the elevation of High Court judges to the Supreme Court of India, he said:

An assessment of the performance of a judge – that is hardly done. Generally the assessments go by impressions. That’s where the difficulty is. Once that assessment is there, then the proceedings are recorded: why a particular candidate is being rejected and why a particular candidate is being approved. We need a more transparent system.

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Justice Chelameswar was speaking at the launch of a collection of essays published by Oxford University Press and edited by Arghya Sengupta and Ritwika Sharma (of the Vidhi Centre for Legal Policy). The book, titled ‘Appointment of Judges to the Supreme Court of India: Transparency, Accountability, and Independence’, includes essays by legal experts such as Finance Minister Arun Jaitley and political scientist Pratap Bhanu Mehta.

The comments on assessments and the need for more transparency were in response to a question from the moderator of the panel discussion based on observations in Jaitley’s essay that seniority and performance of judges were conveniently used terms by the Collegium when deciding judicial appointments.

What Critical Reforms are Needed in the Judiciary?

One of the key themes in the book is an assessment of attempted reforms to the judiciary such as the National Judicial Appointments Commission (NJAC), which had attempted to include representatives from civil society and the government part of the process to appoint judges alongside members of the Collegium. Justice Chelameswar had dissented against the Supreme Court’s decision to strike down the NJAC as unconstitutional.

During the panel discussion, he was asked by Sengupta what he felt are the critical reforms that the Supreme Court needed to undergo to remain credible in the public eye. Joking that this was a topic on which an entire seminar could be conducted, Justice Chelameswar noted that before one could decide what reforms are needed, we first need to understand what are the problems which beset the judiciary.

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After a number of recent interactions where he has generated some controversy for being willing to be relatively candid about the judiciary, including the unprecedented press conference in January, a letter to the Chief Justice of India regarding executive interference in the judiciary, and just this Sunday, an interview with Karan Thapar, Justice Chelameswar was a bit more reserved during the panel discussion at the book launch.

He refrained from answering any questions related to any of the recent events in the Supreme Court, including from this journalist regarding corrective measures that can be taken against judges apart from impeachment. However, he dealt at length with the questions and issues that related to the main themes of the book being launched, as well as the question of what reforms were needed in the judiciary.

Some time ago, at another book launch, he had mentioned the backlog of cases at the Supreme Court as a severe challenge it needed to surmount so that it could maintain its relevance as an institution. On Monday, he highlighted two other issues:

1. The size of the Supreme Court in terms of number of judges; and
2. The policy of ‘transferring’ in judges from other states to become Chief Justices of the High Courts.

According to Justice Chelameswar, the large sanctioned strength of the Supreme Court – 31 judges – is a problem because now every state wants to have judges at the apex court. The Supreme Court has tremendous power, jurisdiction and authority, and it has become an unwritten norm that there needs to be state-level representation. This in turn raises complications when it comes to the appointment of judges.

The second issue, on transfer of High Court judges, relates to the efficiency of the High Courts, which in turn impacts the Supreme Court which has to hear appeals from High Court decisions, and whose judges mostly come from High Court.

The policy was introduced back in 1985 because of concerns that if a judge were to become Chief Justice of their own state, it was likely that they would be influenced by local factors, and would look to “build empires”.

Questioning whether a non-native Chief Justice from outside the state would really not be influenced by local factors, he drew applause and laughter from the crowd, quipping, “If the danger is building of empires, why not have transferred, non-native Chief Ministers?”

Justice Chelameswar also used his own experience as Chief Justice of the Guwahati High Court and then the Kerala High Court (having become a judge in Andhra Pradesh) to illustrate why this was a serious problem.

The average tenure of a Chief Justice in High Courts across the country is less than one year. It would take time to get people acquainted to the place, to the complications. By the time CJ understands the local conditions and the problems, and starts to deal with it, he will be elevated to the SC, or retired, or transferred to another HC. I don’t believe it solves any problems, this policy.

Changes to Functioning of Supreme Court?

Another issue mentioned by Justice Chelameswar in previous speeches has been the bloated jurisdiction of the apex court, which sees it deal with not just interpretations of the Constitution, but even appeals in criminal cases.

Here, after the other panellist, Oxford Professor Paul Craig, expressed his astonishment at the size and jurisdiction of the Supreme Court, Justice Chelameswar was asked about ways to improve the functioning of the Supreme Court itself, to make it more efficient.

One of the ideas which he approved of was the establishment of a permanent Constitution Bench of five judges to hear cases relating to constitutional challenges. Examples of such cases would include the ongoing Aadhaar case, the challenge to Section 377 of the IPC, or any case relating to freedom of speech.

Currently, Constitution Benches are set up from time to time to deal with significant matters, while the judges normally sit in benches of two (or three). Justice Chelameswar noted that this in itself created confusion since such Division Benches often took different stances on matters, since “ultimately, law is a matter of opinion to a large extent." This leads to more references to higher benches to resolve the conflict, which increases the court’s backlog, currently at 50,000+ cases.

He was also critical of how the court’s jurisdiction had expanded to include cases it was never supposed to hear, according to the original plan in the Constitution. “I don’t think Dr Ambedkar and BN Rau ever thought the Supreme Court will hear bail applications,” he said, adding that “if you stick to the original jurisdiction of the court, you don’t need 31 judges.”

Lastly, he addressed the suggestion that the reason for the Supreme Court’s predicament was that the quality of decision making in the High Courts is not up to the mark, meaning the court has to keep admitting appeals. Justice Chelameswar argued that this was less a question of the High Court’s quality and more about having the option to appeal.

“I am sure if there was another appellate court above the Supreme Court, half our judgments would be reversed,” he said, to the amusement of the crowd. He also noted that prior to independence, India had done just fine without a Supreme Court (very few cases went to the equivalent Privy Council back then), with the High Courts producing some outstanding judges and landmark judgments.

He concluded by saying:

If the quality of the High Courts is not up to the mark, we must devise ways and means to improve the quality of the High Courts and strengthen them. Otherwise you are avoiding the problem; after all, you will be appointing the same judges to the Supreme Court later.