A Judge Who Sat for Three and a Half Years, and Wrote Seven Judgements

Truth shows itself up in many ways, whatever the attempt to gloss it over.  Some ongoing proceedings in the Supreme Court are an example.

You may have noticed.  A new law has been made to appoint judges to the High Courts and to the Supreme Court of India, creating a National Judicial Appointments Commission (NJAC) for the purpose.   Earlier, under a law declared by the Supreme Court, we had a compact body of some serving judges of that court, called the collegium, which had the final say in the appointment of those judges.  The new law has replaced the collegium with NJAC.

A bench of five judges of the Supreme Court, led by Justice J. S. Khehar, is presently hearing petitions questioning the constitutional validity of the new law that gave birth to NJAC.  While addressing the court on behalf of the central government and defending NJAC, Attorney General Mukul Rohatgi faulted the collegium system in many ways.  He placed an argument and the Supreme Court queried him on that.  That was the flashpoint when we could see some truth glitter.

Without mentioning names, the Attorney General told the Supreme Court about some serving and retired judges of High Courts and the Supreme Court selected by the collegium but who didn’t do credit to themselves.  One he spoke about is a former judge of the Supreme Court.  That particular judge, said the law officer, wrote a mere seven judgements during his tenure of three and a half years in the Supreme Court, while other judges of that court serving for so long authored hundreds of judgements. The Attorney General cited that instance as one when the collegium could not select a judge of merit, as part of his argument that the collegium system had to go.

Almost everyone in the court room hearing the Attorney General – judges included – knew which former Supreme Court judge he referred to.  The judge’s name is not very important here, and let me just denote him as ‘Retired Judge’. The Attorney General certainly made his point. There was also a counter point Justice Khehar instantly put forth: then how come, he asked,  that after that judge retired from the Supreme Court, the government found him fit to be appointed a member of the National Human Rights Commission? The Attorney General had no convincing answer. Justice Khehar also mentioned, news reports say, that that particular judge was appointed to the Supreme Court following the principle of ‘due representation to different sections of society’ “which the government also intended to adopt for NJAC”. The Attorney General didn’t seem to press further on the value of his example.  That exchange of views put the spotlight on a sad truth about public affairs in India.

As you see, the central government, through the Attorney General, has openly pointed out that the Retired Judge was not fit to be appointed to the Supreme Court. The Constitution Bench of the Supreme Court could not observe that the Retired Judge, approved by the collegium, was really fit for such a high office in the judiciary.  Justice Khehar only said that the Retired Judge's induction was on the basis of a ‘principle’.  The Attorney General also seemed to recognise and defer to that ‘principle’ immediately. So he could not argue that, post retirement, the Retired Judge became best suited to come to NHRC.  In a way this was the loudest public acknowledgement from the executive and judicial branches of Indian polity that someone not fit was appointed to the Supreme Court – that is why the Attorney General cited his example in court as a bad appointment from the collegium - and it was explained and accepted as an incident of State policy.  But here, let me also make myself clear. I am merely recounting a scene from the Supreme Court hearing in the NJAC case to glean and stress on something relevant to this article. I am not saying anything on the merits of arguments of either side on the main issues of that case.

Any country witnessing a similar spectacle in its judicial branch, i.e., with someone like the Retired Judge being there, takes its serious consequences.  Litigants coming before him or her could be silent victims of a national betrayal.  There is so much nuance about being a judge in court and the lay public cannot know that it is part of the art of good judging.  Even if a judge does not do anything seriously wrong, if he sits at the highest court and does not do much that is right, that is grave.

       If we have a wrong person as a Supreme Court judge and if we may explain it only with the help of a ‘principle’ of ‘giving due representation to different sections of society’, isn’t that principle wrong in the first place?  And the ‘principle’ makes sure we may routinely have such not-fit-on-merit persons once in a while in the Supreme Court and elsewhere, because it is the principle which is the first culprit and we are not doing anything about it.  NJAC will also follow the 'principle', if that new body will survive. The whole country wants 100% merit and competence in its cricket team – not as much in its hallowed institutions.

We have had excellent individuals from many sections of our society for several top positions in the country.  Justice K. T. Thomas who retired as a Supreme Court judge in 2002 - belonging to the same 'section of society' as the Retired Judge - is a distinguished one from the recent past.  If we give out the signal that only persons of right merit will reach high places in public affairs, that itself will uplift the morale and competence of all sections of the society.  That will benefit the general public too. But we are not moving in that direction.

What happened during the Supreme Court hearing could be an eye-opener to many public officers.  From now on they may not speak openly on facts which do not add to national excellence or glory.  The country may still follow the ‘principle’ and publicly pretend its ill-effects do not exist. Pretension, thy name is India!

* * * * *

Copyright © R. Veera Raghavan 2015