You might have heard a great deal in the media about the outrage expressed by Supreme Court Justice Chelameswar. His outrage was expressed in his letter to his colleagues –the judges of the Supreme Court. Now, what is this outrage about?

Well, let us start with the appointment of judges to the High Courts and the Supreme Court of India. In comparison to the rest of the world, India currently follows a unique and a rather, strange system for these appointments.

Under our Constitution, it was the Central Government acting through the President of India that would appoint judges to the High Courts and the Supreme Court - after consultation with the Chief Justice of India (and additional consultation with the Chief Justice of a High Court and the Governor of a State in case of appointment of judges to a High Court). However, our Supreme Court reasoned in 1993 that such a system might lead to unworthy appointments of judges that are friendly and loyal to the Central Government. It subsequently put in place, a committee of senior-most judges of the Supreme Court (called as a ‘Collegium’) to bypass the Central Government and to overtake this process of appointment - by selecting candidates as judges and sending such a list to the Central Government. If the Central Government was unhappy with any of those names and sent back any name to the Collegium, the Collegium would relook those names, and if it still chose to stick with those names, the Central Government was bound to appoint such persons as the judges of the High Court or the Supreme Court, as the case may be.

The Central Government reluctantly complied with this unusual and strange judicial arrangement, until Narendra Modi came along. Incidentally, no political party witnessed a majority in the Lok Sabha after 1993 until Modi came along in 2013. Modi wants some of his men as judges and does not want a few recommended names as judges. The Collegium would not listen and so comes all the friction!

One Krishna Bhat is currently, a judge of a District Court in Karnataka. The Collegium recommended his name for the judgeship of the Karnataka High Court some time ago. The Central Government was not pleased with it and wanted the Collegium to take a relook. The Collegium took a relook and reiterated his name. Technically, the Central Government became bound to appoint him – after the reiteration. It did not do so, however. Why so?

The trouble for judge Krishna Bhat is quite newsworthy. A woman Magistrate had complained about sexual harassment and atrocity by him. Expectedly, the Collegium had wanted the then Chief Justice of Karnataka High Court, S.K.Mukherjee to conduct an enquiry over this allegation. The outcome of this enquiry would have determined whether the Collegium would recommend his name for the judgeship of the Karnataka High Court. It is now learnt that the then Chief Justice S.K.Mukherjee did not even hold a personal hearing or call the woman Magistrate to depose before him. He relied on other sources and concluded that the complaint was frivolous and concocted. He reported his conclusion to the Collegium. The Collegium accepted CJ Mukherjee’s report and reiterated its recommendation to the Central Government.

You know that the Central Government did not listen to the Collegium.

In the meanwhile, Dinesh Maheshwari was appointed as the Chief Justice of the Karnataka High Court. It is now learnt that the woman Magistrate had expressed her complaint in the form of an Affidavit. That is, if her allegation stated on an Affidavit was found to be false, she could have been criminally prosecuted. Generally, such a format ought to legally inspire confidence in the content of it.

It appears that the Central Government did not consider previous Chief Justice S.K.Mukherjee’s report as well-founded. So, it requested the current Chief Justice, Dinesh Maheshwari to conduct an enquiry over the same allegation that was already closed by previous CJ Mukherjee. CJ Dinesh Maheshwari agreed to this request by the Central Government and had commenced an enquiry.

Then came the letter by Justice Chelameswar. It criticises CJ Dinesh Maheshwari and the Central Government. It speaks of a ‘race to the bottom’ and calls CJ Dinesh Maheshwari as a frontrunner in such a race to the bottom. I do not think that this country has seen such a stinging letter by a sitting judge of the Supreme Court in the past few decades, at least. However, in my view, instead of embarrassing the Central Government or the CJ Dinesh Maheshwari, Justice Chelameswar’s letter is more likely to embarrass the Collegium itself for having treated a sworn complaint of sexual harassment by a woman Magistrate without the requisite seriousness or consideration; incidentally, Justice Chelameswar too is a part of the Collegium.

Of course, the Central Government is at fault for not appointing Judge Krishna Bhat as a judge of the Karnataka High Court. A fresh enquiry could have always been conducted against him even while he was to function as a judge of the High Court; there is no legal bar for holding such an enquiry due to his appointment. And, if the enquiry would have confirmed the allegation, he could have been dealt with in numerous ways.

Separately, the Collegium has racked up frequent criticism in recent years over its choice of some persons to the Bench. Also, it would be unreasonable to criticize Chief Justice Dinesh Maheshwari for initiating an enquiry against Judge Krishna Bhat. After all, judge Krishna Bhat himself could not have been prejudiced if an enquiry involving personal hearing and deposition that is a norm in cases of sexual harassment is held against him this time as it was not held earlier; he has no legal or vested right to preserve an unsatisfactory mode of enquiry previously conducted against him. Of course, CJ Dinesh Maheshwari could be faulted for not being too loyal or grateful to the Collegium - by other loyalists or adherents.

The Collegium system of appointment of judges to the Supreme Court and the High Courts is witnessing a very severe strain in recent times. It works only so long as the Central Government is willing to take this inherently strange system in its stride. Modi has repeatedly indicated that he is unhappy with it. A large number of recommendations by the Collegium have been gathering dust in his office; thereby, the Collegium is becoming more ineffective with more time under Modi. And, Justice Chelameswar wants a full court of all the judges of the Supreme Court to get together and to confront the Central Government. The best way for the Collegium to experience even more ineffectiveness than at present is to force all the judges of the Supreme Court to come together and to confront Modi.

Incidentally, Justice Chelameswar had himself been a staunch public critic of the functioning of the Collegium system and had wanted it to mend its ways. With his letter, Justice Chelameswar is more likely to leave the Collegium a lot weaker than it was before the letter.

(A version of this column was published in Bangalore Mirror on 31-Mar-2018)