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An estimated 8-minute read
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Supreme Court Advocate K.V.Dhananjay asks if it is appropriate for dissenting Justice Chelameswar to participate with the majority-judges in the ‘Collegium Reformation’ hearings set for 3rd November, 2015. He says that Justice Chelameswar’s participation in it could muddle and confuse his dissenting judgment – if his published dissent isn’t meant to be provisional and is complete as it is.

Many of you might have read the 16-Oct-2015 NJAC judgment.
The Order part of the judgment signed by all the five judges says, in part:
5. To consider introduction of appropriate measures, if any, for an improved working of the “collegium system”, list on 3.11.2015.
Jagdish Singh Khehar J
J. Chelameswar J
Madan B. Lokur J
Kurian Joseph J
Adarsh Kumar Goel J

So, there will be a hearing on 3-Nov-2015 in which all of the five judges will hear proposals, suggestions and arguments for reforming the collegium system. You are aware that the collegium system was in fact, legally sustained and reiterated by the 4 majority judges whereas Justice Chelameswar dissented from the majority and would have allowed the 99th Constitutional Amendment to dissolve the pre-existing collegium. His dissent is quite emphatic and some of it says:

-In regard to exclusion of the executive in the matter of appointment of judges to the higher judiciary:
Page 567 - Para 104..... In this context, to hold that it should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy. Such exclusion has no parallel in any other democracy whose models were examined by the Constituent Assembly and none other were brought to our notice either. Established principles of constitutional government, practices in other democratic constitutional arrangements and the fact that the Constituent Assembly provided a role for the Executive clearly prohibit the inference that Executive participation in the selection process abrogates a basic feature. The Attorney General is right in his submission that exclusion of the Executive Branch is destructive of the basic feature of checks and balances – a fundamental principle in constitutional theory.

-On presence of eminent persons within the NJAC :
Page 573 – Para 108....Such procedure would still preserve the choice of eminent persons primarily with the Committee contemplated under Article 124-A, while incorporating sufficient safeguard against possible abuse of the power by the Committee.

-The absence of a ready guideline on how the NJAC was to select men of integrity, learning and character was held to be harmless as freedom to frame appropriate guidelines was not to be feared:
Page 577 – Para 113...To contend that the AMENDMENT is destructive of the basic structure since it does not lay down any guidelines tantamounts to holding that the design of the Constitution as originally enacted is defective!

Page 583 – Para 120. For all the abovementioned reasons, I would uphold the AMENDMENT. However, in view of the majority decision, I do not see any useful purpose in examining the constitutionality of the ACT.
Page 584 - I only part with this case recollecting the words of Macaulay – “reform that you may preserve” . Future alone can tell whether I am rightly reminded of those words or not.

In light of the aforesaid dissent, would it be consistent therewith for Justice Chelameswar to participate in the forthcoming ‘collegium reformation’ hearings? Well, it simply comes down to whether the judge expects his dissent to be read as provisional.

Let us take a simple illustration. Five judges set out to examine the validity of a statute that forces one class of persons to compensate another class of persons in a certain event. Four judges validate this statute while the remaining one judge would want to strike it down. Thereafter, a hearing is scheduled later to set down judicial rules to ensure that the determination of compensation under the just validated statute is fair, just and reasonable Should the dissenting judge participate in such an exercise?

Well, the dissenting judge did express his disapproval of the statute itself and his participation in furthering a statute that does not meet his judicial approval in that very proceeding would dilute his dissent - if that dissent did rest on a perception of some terms of the statute being unreasonable. His further participation would allow a reader to think – this judge did dissent because of his perception of some of the terms of the statute being unreasonable; his own effort to make the statute more reasonable than the judges found it would counteract and mitigate his dissent. His dissent is not what it apparently says – it is less emphatic than it sounds and it is counteracted by his further effort to render the statute relatively more reasonable in its actual operation.

The aforesaid textbook illustration should shed some light on what Justice Chelameswar’s participation could do to his dissent. Of course, I am assuming that his published dissent is complete as it is and is not provisional. Hence, I am of the view that his participation with the majority further would muddle his dissent.

By the way, the NJAC case is a terribly complex case for the judiciary and even more troubling for law-journal publishers to make editorial sense of. We see a significant part of the judgment devoted to a discussion over whether Justice Khehar should have recused himself from the hearing. He didn’t. But if he should have, he rightly pointed out that the rest of the judges too should be recusing as well - as the alleged disqualification was as much applicable to the other judges also on the Bench. Then comes Justice Chelameswar’s query over why the petitioners were canvassing a respondent-worthy apprehension when in fact, the respondents themselves weren’t expressing any such apprehension or demanding a recusal on that basis.

It is quite surprising for so many of us to note why so much of judicial effort was spent in addressing an apprehension by the petitioners that could have only belonged to the respondents and which apprehension was being selectively flung at only one of five judges on the Bench. The judgment therefore, is already voluminous and traverses many directions that it could have conveniently avoided.

Whoever would think of the existence of a neat division between the dissenting judgment and the majority judgment in the NJAC judgment might want to revisit his impression a month later – if Justice Chelameswar would participate in the collegium reformation hearings. A judgment reader would certainly stare at some confusion in such a continuing judgment – the published judgment of the majority would then be thought to rest on a willingness of the majority judges to reform the collegium by prescribing several rules; their sustenance of the collegium isn’t then strictly based on legal history alone; it is also based on their belief in their own ability to reform a body that they were just sustaining.

Is it then also open to such majority judges to preface their reformatory judgment by saying that it is independent of their majority judgment? Of course, it is open to them. The question is not so much whether it is so open to them but whether it will serve any useful purpose for a judge to first write a judgment that could be readily construed in one way and to then declare that it shall not be so construed at all? You know the answer.

We are therefore, already staring at a fifth judges case – no matter how the collegium reformation hearings turn out.

Of course, I am not for the collegium system at all. I consider it to be a headache inducing political theory. It has nothing of the law in it.

I wrote a column last week in a newspaper on why it makes sense to see the collegium system as a political power exercised by the Supreme Court over a weak Central Government and a weaker Prime Minister. That brought a few University people in touch with me. Over a cup of coffee, I thought that I was joking to them when I simply asked them if they would like to honour the four judges with a doctorate in ‘political theses’. Fortunately, my joke didn’t register on them and they seemed very excited about the idea of an award of such a doctorate in ‘political theory’ to the four majority judges!

Of course, I privately had thought that a University wanting to honour a Supreme Court judge for putting forth a political theory in his judgment as his very judgment would be a great way to convey to the world about how much that judge has strayed from his proper and assigned function.

One of the audience members there, however, said that leaving out a dissenting judge seemed a bit unfair! Thanks to the possibility of Justice Chelameswar making it to the collegium reformation hearings, such concern of unfair discrimination should not even arise!

By the way, if you are the Central Government reading this: You certainly should get creative on how to convey a message to the world about the improper nature of the collegium system – than your representatives shouting their lungs out to the papers or to television and risking ‘sedition’ charges for that. It would be quite exciting to see some University in this country announce award of such a doctorate in ‘political theses’ to the majority judges.

Of course, I could assure here to whoever wants it that that such an University will never be hauled up for contempt by any court. Have you ever heard of a Supreme Court hauling up a University for awarding a judge of that court with a doctorate? You haven’t. And, you won’t.

So, a doctorate in ‘political theory’ is what our majority judges deserve for now – 4 if awarded today and may be 5 if awarded a few days later.

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