KRISHNADAS RAJAGOPAL IN THE INDIAN EXPRESS
Eighteen years after a ‘polarised’ nine-judge Bench delivered a majority verdict which led to the collegium system of appointment of judges, a senior lawyer’s report in the Supreme Court reproduces the misgivings felt by one of them about what happened in 1993. The report by senior advocate A K Ganguli, the Supreme Court’s own amicus curiae, uses the opening remarks of Justice M M Punchhi’s dissenting judgment in what is famously called the Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India) to convey that the majority verdict of 1993 was a bunch of “individual opinions” drafted by a majority over the summer vacations without prior consultations among the nine judges.
The verdict gave the Chief Justice of India primacy over the government on the appointment of judges to high courts and Supreme Court, and ultimately led to the setting up of the collegium system, now a controversial point for its alleged lack of transparency.Ganguli was appointed amicus by a Bench of Justices Deepak Verma and B S Chauhan in a petition filed by NGO Suraz India Trust, seeking “review” of the 1993 judgment.
After Attorney General G E Vahanvati, appearing for the government, also seconded Ganguli’s claim, the Bench referred the case to Chief Justice S H Kapadia on April 4, 2011 to choose on a larger Bench to re-visit the majority verdict. The Bench, in its order, said the case involved “very complicated legal issues”.“This nine-judge Bench sat from April 7, 1993 to hear this momentous matter concluding its hearing on May 11, 1993 close to the onset of the summer vacation. I entertained the belief that we all, after July 12, 1993, on re-opening of the court, if not earlier, would sit together and hold some meaningful meetings, having a free and frank discussion on each and every topic which engaged our attention, striving for an unanimous decision concerning mainly the institution of the CJI, relatable to this court,” Justice Punchhi narrates the turn of events.
Justice Punchhi, who went on to become the Chief Justice of India in 1998, goes on to say that he was however “overtaken” when he received a draft opinion dated June 14, 1993 authoured by Justice J S Verma, who represented four other judges of the Bench, thus forming a majority.“The hopes for a free and frank discussion vanished,” Justice Punchhi said as he explained how the rest of the Bench wrote separate judgments till September 9, 1993 without any further consultations. “No meaningful meeting thereafter was possible as views by that time seems to have been polarised,” Ganguli quotes Justice Punchhi to point out that it is time to re-visit a judgment delivered in such a divided manner.
A final decision on the issue may be made after the court starts its session after this year’s summer vacation.
- Collegium system of judges appointment to be revisited (indialawyers.wordpress.com)
- Judiciary, Executive should have equal say in appointments: Law Commission (indialawyers.wordpress.com)
- WHOSE AMICUS IS Harish Salve? (indialawyers.wordpress.com)
- Go beyond SIT report on Jaffrey case, court tells amicus curiae (hindu.com)