JUSTICE KATJU – MEDIA DEBATE : Press freedom must be examined

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

JUSTICE MARKANDEY KATJU IN THE INDIAN EXPRESS

As I have already mentioned, in this transitional age, the media should help our people move forward into the modern, scientific age. For this purpose the media should propagate rational and scientific ideas, but instead of doing so, a large section of our media propagates superstitions of various kinds. It is true that the intellectual level of the vast majority of Indians is very low — they are steeped in casteism, communalism and superstition. The question, however, is: Should the media try to lift up the intellectual level of our people by propagating rational and scientific ideas, or should it should go down to that low level and seek to perpetuate it? In Europe, during the Age of Enlightenment, the media (which was only the print medium at that time) sought to uplift the mental level of the people and change their mindset by propagating ideas of liberty, equality and fraternity and rational thinking. Voltaire attacked superstition and Dickens criticised the horrible conditions in jails, schools, orphanages, courts etc. Should not our media be doing the same?

At one time, courageous people like Raja Ram Mohun Roy wrote against sati, child marriage and the purdah system in his newspapers Miratul Akhbar and Sambad Kaumudi. Nikhil Chakravartty wrote about the horrors of the Bengal Famine of 1943. Munshi Premchand and Sarat Chandra Chattopadhyay wrote against feudal practices and women’s oppression. Saadat Hasan Manto wrote about the horrors of Partition.

But what do we see in the media today?

Many TV channels show astrology-based programmes. Astrology is not to be confused with astronomy. While astronomy is a science, astrology is pure superstition and humbug. Even a little common sense can tell us that there is no rational connection between the movements of the stars and planets, and whether a person will die at the age of 50 or 80, or whether he will be a doctor or engineer or lawyer. No doubt most people in our country believe in astrology, but that is because their mental level is very low. The media should try to bring up that level, rather than to descend to it and perpetuate it. Many channels mention and show the place where a Hindu god was born, where he lived, etc. Is this is not spreading superstition?

I am not saying that there are no good journalists at all in the media. There are many excellent journalists. P. Sainath is one such, whose name should be written in letters of gold in the history of Indian journalism. Had it not been for his highlighting of farmers’ suicides in certain states, the story (which was suppressed for several years) may never have been told. But such good journalists are the exceptions. The majority consists of people who do not seem to have the desire to serve the public interest.

To remedy this defect in the media, I have done two things. First, I propose to have regular meetings with the media (including the electronic media) every two months or so. These will not be regular meetings of the entire Press Council, but informal get-togethers where we will discuss issues relating to the media and try to resolve them in a democratic way, that is, by discussion, consultation and dialogue. I believe 90 per cent of the problems can be resolved in this way. Second, in extreme cases, where a section of the media proves incorrigible despite trying the democratic method mentioned above, harsher measures may be required. In this connection, I have written to the prime minister requesting him to amend the Press Council Act by bringing the electronic media also under the purview of the Press Council (which may be renamed the Media Council) and by giving it more teeth — for example, the power to suspend government advertisements or in extreme cases, even the licence of the media houses for some time. As Goswami Tulsidas said: “Bin bhaya hot na preet.” This, however, will be resorted to only in extreme cases and after the democratic method has failed.

It may be objected that this is interfering with the freedom of the media. There is no freedom which is absolute. All freedoms are subject to reasonable restrictions, and are also coupled with responsibilities. In a democracy everyone is accountable to the people, and so is the media.

To sum up: The Indian media must now introspect and develop a sense of responsibility and maturity. That does not mean that it cannot be reformed. My belief is that 80 per cent of those who are doing the wrong thing can be made good people by patient persuasion, pointing out their errors and gently leading them to the honourable path which the print media in Europe in the Age of Enlightenment was following.

(Concluded)

The writer is a former Supreme Court judge and chairman of the Press Council of India

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JUSTICE KATJU – MEDIA DEBATE : Why our media is anti-people

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

JUSTICE MARKANDEY KATJU IN THE INDIAN EXPRESS

To understand the role which the media should be playing in India we have to first understand the historical context. India is presently passing through a transitional period in its history: a transition from a feudal agricultural society to a modern industrial society. This is a very painful and agonising period. The old feudal society is being uprooted and torn apart; but the new, modern, industrial society has not yet been entirely established. Old values are crumbling, everything is in turmoil. Recollect Shakespeare’s Macbeth: “Fair is foul and foul is fair” — what was regarded good earlier, for example the caste system, is regarded bad today (at least by the enlightened section of society), and what was regarded bad earlier, such as marriage for love, is acceptable today (at least to the modern-minded). It is the duty of all patriotic people, including the media, to help our society get over this transition period quickly and with less pain. The media has a very important role to play in this transition period, as it deals with ideas, not commodities. So by its very nature the media cannot be like an ordinary business.

Historically, the print media emerged in Europe as an organ of the people against feudal oppression. At that time the established organs were all in the hands of despotic feudal authorities. Hence, the people had to create new organs which could represent them. That is why the print media became known as the “fourth estate.” In Europe and America it represented the voice of the future, as contrasted to the established feudal organs, which wanted to preserve the status quo. The media thus played an important role in transforming feudal Europe to modern Europe. In my opinion the Indian media should be playing a role similar to the progressive role played by the media in Europe during its transitional period. This it can do by attacking backward, feudal ideas and practices — casteism, communalism and superstition — while promoting modern scientific and rational ideas. But is it doing so?

In my opinion, a large section of the Indian media (particularly the electronic media) does not serve the interest of the people; in fact, some of it is positively anti-people. There are three major defects in the Indian media which I would like to highlight. First, the media often diverts the attention of the people from the real issues to non-issues. The real issues in India are socio-economic — the terrible poverty in which 80 per cent of our people live, inflation, the lack of medical care, education and backward social practices like honour-killing, caste oppression and religious fundamentalism. Instead of devoting most of its coverage to these issues, the media focuses on non-issues — like film stars and their lives, fashion parades, pop music, disco dancing, astrology, cricket, reality shows and so on.

There can be no objection to the media providing entertainment to the people, provided this is not overdone. But if 90 per cent of its coverage is related to entertainment, and only 10 per cent to the real issues mentioned above, then something is seriously wrong. Its sense of proportion has gone crazy. Entertainment may get as much as nine times the coverage that health, education , labour, agriculture and environment together get. Does a hungry or unemployed man want entertainment — or food and a job?

To give an example, I switched on the TV recently, and what did I see? Lady Gaga has come to India; Kareena Kapoor standing next to her statue in Madame Tussauds; a tourism award being given to a business house; Formula One racing, etc, etc. What has all this to do with the problems of the people?

Many channels show cricket day in and day out. The Roman emperors used to say: “If you cannot give the people bread, give them circuses.” This is precisely the approach of the Indian establishment, duly supported by our media. Keep the people involved in cricket, so that they forget their social and economic plight. What is important is not poverty or unemployment, what is important is whether India has beaten New Zealand (or better still Pakistan), or whether Tendulkar or Yuvraj Singh have scored a century. Recently, The Hindu published that a quarter of a million farmers committed suicide in the last 15 years. The Lakme Fashion Week was covered by 512 accredited journalists. In that fashion week, women were wearing cotton garments, while the men and women who grew that cotton were killing themselves an hour’s flight from Nagpur. Nobody told that story, except one or two journalists locally. In Europe, displaced peasants got jobs in the factories created by the Industrial Revolution. In India, on the other hand, industrial jobs are now hard to come by. Many mills have closed down and have become real estate. The job trend in manufacturing has seen a sharp decline over the last 15 years. For instance, TISCO employed 85,000 workers in 1991 in its steel plant, which then manufactured 1 million tonnes of steel. In 2005, it manufactured 5 million tonnes — but with only 44,000 workers. In the mid ’90s, Bajaj was producing a million two-wheelers with 24,000 workers. By 2004, it was producing 2.4 million units, with 10,500 workers.

Where then do these millions of displaced peasants go? They go to cities — where they become domestic servants, street hawkers, or even criminals. It is estimated that there are one to two lakh adolescent girls from Jharkhand working as maids in Delhi. Prostitution is rampant in all cities, due to abject poverty.

All this is largely ignored by our media, which turns a Nelson’s eye to the harsh economic realities facing up to 80 per cent of our people, instead concentrating on some glamorous Potemkin villages. Second, the media often divides the people. Whenever a bomb blast takes place anywhere in India, within a few hours TV channels start saying an e-mail or SMS has been received from Indian Mujahideen or Jaish-e-Muhammad or Harkat-ul-Jihad-e-Islam claiming responsibility. The name will always be a Muslim name. Now an e-mail or SMS can be sent by any mischievous person who wants communal hatred. Why should they be shown on TV screens, and next day in print? The subtle message being sent by showing this is that all Muslims are terrorists or bomb-throwers.

About 92 to 93 per cent of the people living in India today are descendants of immigrants. Thus, there is tremendous diversity in India: so many religions, castes, languages, ethnic groups. It is absolutely essential that if we wish to keep united and prosper, there must be tolerance and equal respect to all communities. Those who sow the seeds of discord among our people, whether on religious or caste or linguistic or regional lines, are really enemies of our people. The senders of such e-mails and SMS messages are therefore enemies of India, who wish to sow the seeds of discord among us on religious lines. Why should the media, wittingly or unwittingly, become abettors of this national crime?

http://www.indianexpress.com/news/why-our-media-is-antipeople/870441/0

‘Do not insist on forcing us to do something that goes against the oath of our office’

Raj Ghat, Delhi is a memorial to Mahatma Gandh...

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INDIAN EXPRESS

Vandita Mishra: The Anna Hazare movement has been gaining momentum. In your interaction with MPs, do you see a shared sense of siege because of what is happening right now?

There is near unanimity in the country and amongst parliamentarians that corruption is a national issue. However, there is equal unanimity amongst parliamentarians that the way forward to address corruption is not to call into question the entire constitutional edifice where parliamentary supremacy in the matter of law-making is non-negotiable. In a republic inspired by Mahatma Gandhi, you can’t completely ignore the constitutional means for addressing a national malaise. But you should address corruption in a way consistent with the sanctity of our Constitution.

Coomi Kapoor: Are you saying unconstitutional means are being used? All they are doing is building up public opinion so that parliamentarians take into account the views of the public for this long delayed Bill.

The right to dissent, the right to protest and the right to mobilise opinion is given and it is respected and accepted. This is the reason why Anna and his team are fasting at Ramlila Maidan. In fact, the state is making all arrangements to facilitate the protest. What is an issue is the inclination to put a gun to the government’s head and say this is the Bill that you must legislate into law and you must do so by such and such time irrespective and in derogation of the established procedure of law-making as per the Constitution. How can you, in the name of advancing a laudable national objective, completely negate the permissible means under your Constitution? Now the argument is that we, the people of India, come first in the Constitution, therefore, everything else is subservient to the will of the people. Even with this I have no quarrel. But how do you determine the will of the people? The Constitution ordains that you determine the will of the people after every five years through an election. If you insult the collective judgment of the people of India, you are not advancing democracy. This is my view as a citizen of this country, as a constitutionalist, as a lawyer. The Constitution is intended to be a bulwark against the impulses of transient majorities. Majorities will come and go but the Constitution is supposed to be an enduring edifice.

Dilip Bobb: The general impression is that the government is now employing delaying tactics. How do you convince them that you are with them and not against them?

Let me tell you what this government has done so far: it’s not as if PM made his appeal for the first time last Tuesday–he used every opportunity to say that any peaceful contestation can be the subject of a debate. He has said, let us have a stronger Lokpal Bill based on a larger political consensus. He said he was not against the protest, he was concerned about Anna’s health. But don’t insist on forcing us to do something against the oath of our office. As a duly-elected government, we are voted into power and we want to uphold the Constitution of India. In the parliamentary process of law-making, the Standing Committee is a time-tested process which has produced very good legislation. Today, the atmosphere in the country is such that there is an earnestness to push for Lokpal as an instrument to remove corruption. But to say, do it by tomorrow and discount the Standing Committee procedure, to say that you want a bill to be rammed through in a manner that tomorrow somebody can ask why we have consciously ignored contrary views–that’s where we have issues. The same Constitution that gives me the right to the validity of my views, gives to the other the right to contest those views. But if you insist on deadlines, you are negating the first principle on which this republic is founded. What prevents another group from saying they will sit at Rajpath? If the government starts to buckle on issues of principle, the government will have no right to ask the citizens to comply with the law.

Coomi Kapoor: But the government has buckled, firstly by making Anna Hazare a member of the official drafting committee. Then you said the PM has to be out of the Lokpal and you buckled on that too. There has been a series of retractions from the government which shows that things are not that hard and fast.

There are give and take situations but there has never been a negation of an express constitutional stipulation. There is no bar on the Standing Committee to take into consideration the Jan Lokpal Bill.

Coomi Kapoor: But earlier the government had said it was not possible?

The difference is in what was being said by the Anna camp–that the Standing Committee should discuss “our” Bill. The process of law is that the Cabinet prepares a format which goes to Parliament, and that Bill is presented to the Standing Committee. There is no precedent for anyone insisting that the government takes only their Bill; if the government agrees with their Bill, it can present it to the Standing Committee as its own–there is no difficulty in that. But to tell us to disown our own Bill and to discuss only ‘your’ Bill amounts to law-making being outsourced to people who, as per the Constitution, cannot be the lawmakers. And the day you make a deliberate departure from the expressly stated and incontrovertible stipulation of the Constitution, you violate your oath of office. No government worth its name can consciously negate the fundamental principles of the Constitution.

Maneesh Chhibber: You said you can’t outsource lawmaking to anybody. So what is the National Advisory Committee (NAC) doing?

NAC is doing nothing other than submitting its suggestions. Name one law which NAC has insisted upon, the manner in which Anna Hazare is insisting. I cannot recall NAC ever insisting on anything.

Pradeep Kaushal: Why did you outsource drafting of the Lokpal Bill to the committee where half the members were from civil society?

It was a limited decision made in order to ensure that their views were fully taken on board. There is no constitutional or legal bar to not associate somebody with the draft. The bar is on the Bill we eventually bring before Parliament. After the drafting committee came to a conclusion, the ministers accepted some of Hazare’s suggestions and did not accept others. Then they presented the Bill to the Cabinet, which, in turn, endorsed it to make it a government Bill. That was presented before Parliament. We associated with these people purely to make sure that they had a full say in giving their inputs while the members of the government in that committee were formulating the draft.

Vandita Mishra: People say the government’s case is being made on too many legal, technical grounds and there is not enough of a political input.

Political issues are responded to politically as the PM has done last week. It is a political response of a sensitive and responsive PM who is concerned about the way things are developing, about the health of Anna Hazare. Legality and politics are not mutually exclusive to the extent that lawyers are able to backseat constitutional and legal issues and package them as part of the political response. I don’t see any inconsistency or mutual exclusivity between the two

Vandita Mishra: But what is the single largest source of hostility to the government?

My sense is that people tend to think we are not with them in the fight against corruption. As time has gone by and as the debate is put in the correct perspective, it is clear that this is a choice between the right ends and the right means. People are tending more and more to agree with our perspective. The letter PM wrote and the public appeal made earlier to Anna Hazare to give up his fast were intended as a decisive signal to bring the national discourse back from an idiom of confrontation to an idiom of rational discourse and dialogue.

Maneesh Chhibber: Would you agree that Anna Hazare’s arrest was a wrong move?

I have already said that if I had been in-charge of the situation on the ground, I would not have sent Anna Hazare to Tihar jail. I think the right course would have been to notify a place like a guesthouse to detain him on a preventive basis. I think things moved too fast and these nuances got lost.

Dilip Bobb: What is your personal stand on the issues of the Lokpal covering PM, the bureaucracy and the judiciary?

Constitutionally, it is completely impermissible. How do you expect the government to consider these demands? On the judiciary: we have a constitutional procedure to discipline judges. As for PM, he has repeatedly said he has no problem being under the ambit of the Lokpal. But it is not as if this PM is the only PM under contemplation. What is under contemplation is the office of the PM, who has been described as the keystone of the Cabinet arch. And if the keystone is disturbed, the arch collapses. It is my personal view that no prime minister should be subjected to a system of inquiry or prosecution where immediately on the receipt of a complaint, the entire regime is triggered. It is not the absence of laws that have prevented prosecution of PMs. We have had two PMs who have been prosecuted even without the Lokpal. We are being unfair to those honest officers in the government who actually prosecuted PMs and former PMs. It is not because of the absence of laws that corruption in the country is growing, It is because of the general decline in the moral fibre of most people that the country is going down.

Maneesh Chhibber: Very recently, the government removed CBI from under the RTI. Is that probity?

I believe the reason for keeping CBI out of RTI is ensure the integrity of the investigation as the accused can use RTI to get information about what stage the investigation is at, which might destroy the integrity of the investigation.

Raj Kamal Jha: This is hypothetical but if the same debate had happened under UPA-I, do you think you would have been on a stronger wicket than UPA-II under the shadow of CWG and 2G? What role has that shadow played in the current discourse?

I do agree that the atmosphere created in the country with allegations related to 2G and other issues have had an impact, consciously or unconsciously, on the sentiments of the people, and the sentiments of the lawmakers, even the judiciary. In fact, we are all impacted at a certain level–and rationality and objectivity sometimes become the casualty. I saw this phenomenon in the indictment of Justice Sen.

Coomi Kapoor: Did the prevailing atmosphere influence the views of parliamentarians who were not in favour of Justice Sen’s impeachment?

I believe, as a lawyer and not as a parliamentarian, that in a criminal case, two views are possible and if the prosecution has not proved its point to the hilt, the benefit of the doubt must go to the accused. That is not to say that the same principle applies when we have debates on issues such as this in Parliament. The parliamentarians, in their collective wisdom, took a view that the judgment would advance the cause of substantive justice for a cause.

Kaushal Shroff: The Jan Lokpal Bill states that seven members should approve any investigation against the PM, of whom at least four would be judicial members. Wouldn’t they understand the gravity of the issue involved and the repercussions of investigating a PM?

The fundamental issue is the environment in which our democracy operates. The imminent possibility of a mala fide prosecution or investigation into the conduct of the prime minister in the discharge of his extremely critical duties can have the effect of destabilising governments. This is the view that is taken by those who dispute the necessity of the PM in the Lokpal. There are others who believe that there are sufficient safeguards to see an abuse of the law doesn’t take place. If Parliament in its wisdom decides to put the PM under the Lokpal, so be it. But there are two strong views and somebody has to decide which view must prevail. Which is that instrumentality in the scheme of our constitutional order which takes the final call? Parliament, in its collective judgment, where all shades of political opinion are reflected.

Vandita Mishra: Some people in your party say Rahul Gandhi should step into the Anna Hazare negotiations.

Rahul Gandhi enjoys a preeminent position in the party. He has a very incisive instinct on many issues. His counsel is always available to the party. As the Congress general secretary, he doesn’t have to ask anyone before intervening. For all you know, he may be involved in giving his advice in the manner he deems fit. It is his call how to intervene, when to intervene and on what issues to intervene.

Sourabh Jyoti Sharma: Transparency International Report 2010 says the judiciary is the second most corrupt institution in India after the police. Do you want to bring a stronger Judicial Accountability Bill in Parliament?

The Judicial Accountability Bill will be brought before Parliament. The government remains committed to it. There is a broad consensus on it. We need to ensure that there is an adequate mechanism to deal with allegations of lack of probity in the judiciary.

Sourabh Jyoti Sharma: What is your view, as a lawyer, on the collegium system of judicial appointment?

On judicial appointments, the experience has been mixed. I don’t think the collegium system has always achieved the desired results.

Unni Rajen Shanker: Many people are talking for the government in the media. Are you being briefed before you talk?

There is so much information on the issues at hand, we almost drink, eat and breathe these issues. The senior people who go on TV channels do have their own perception of what is required to be said and if there is a doubt in their minds, they are always free to seek clarification.

Vandita Mishra: What is the feedback your parliamentarians are getting from the ground, from outside big cities like Delhi? Do they face the same outrage or is there a distinction to be made?

Nobody disputes that the issue of corruption has caught the imagination of the country. The point of contestation is how does the nation together move forward in a direction that will minimize the scourge of corruption and show that the fundamentals of our body politic are not constantly being eroded by this menace. It is a great tragedy that the current UPA leadership of Sonia Gandhi and Manmohan Singh known for their deep commitment to probity in public life should have to bear the brunt in a very unjust and a very unfair manner just because an atmosphere in the country has been created where the responsibility for all that is wrong lies with the government. Look at the series of initiatives the government has taken on corruption: has anyone else take such corrective measures?

When did a serving minister go to jail, when did we send the top bureaucrats to jail? It is said this was done because Supreme Court wanted it to be done. Who went to Supreme Court and asked, through CBI that the Supreme Court monitor the investigations so that the people of India should not think anybody was being protected? We must at least be given credit for vigorously pursuing the cases of corruption. The proof of the pudding is in its eating. Judge me not by what I say but by what I do and this government has taken conscious, purposive and strong action where strong prima facie cases of corruption have been an issue. One more thing; these are the people who have been behind bars for the last several months and whose bail applications have not been granted. As a lawyer I ask myself, is bail the rule and jail an exception or jail the rule and bail an exception? As early as 1977, Justice Krishna Iyer said bail is the rule as it subserves the cause personal liberty and jail in an exception. You must jail only those people who are hardened criminals who can pervert and thwart the course of justice. I sometimes wonder whether someone can be denied liberty merely because the atmosphere is in favour of hanging those without convicting them. At another level, there are proposals that nobody can contest an election if there is a charge of a criminal offense against him. It is said this is the best way to eliminate criminals from politics.

But it is a dangerous path to follow. We have a great law and a great legal architecture but we also know that laws are abused. It is easy to have a false charge against someone in a mofussil town. Years of reputation built in public affairs, a man’s political career can be destroyed. The answer to the criminalization of politics is not in riding roughshod over fundamental principles that are intended to safeguard your liberties and your inalienable rights embedded in the Constitution. Let us not tinker with the fundamental principles of our republic on account of impulses of the moment. All constitutions are designed to secure the nation against intensities of the momentary impulses. If you tinker with the Constitution, you will never be able to restore its integrity.

Vandita Mishra: The burden of your argument is that there is an atmosphere in the country and the government is an unfortunate victim of that atmospehere. Would you not admit to a single mistake the government has made in contributing to this atmosphere? Has the absence of Sonia Gandhi made a difference?

Sonia Gandhi’s absence is deeply felt at all critical moments and even otherwise both in the party and in the government. Her presence, her guidance, her sage counsel and advice has been a great source of strength to the UPA government and Congress. I will be the last person to say this government, or any government, is infallible. There could be a bona fide error of judgment like sending Anna Hazare to Tihar Jail. Governments do make mistakes but as long as they are bona fide and are redressed and corrected, I think the benefit of doubt must remain with the government.

People throw out governments when they don’t find their explanations convincing. The choice is not between a perfect government and an imperfect government, the choice is between a bona fide governance and misgovernance.

Transcribed by Chinki Sinha & Geeta Gupta

The Collegium Controversy

Supreme Court of India

KRISHNADAS RAJAGOPAL IN THE INDIAN EXPRESS

What is the collegium system?

It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution.

What does the Constitution actually prescribe?

Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.

Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

How and when did the other system evolve?

The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”. The S P Gupta case (December 30, 1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years.

How did the judiciary come to get primacy?

On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”

How final was this?

Justice Verma’s majority judgment saw dissent within the bench itself on the individual role of the CJI. In a total of five judgments delivered in the Second Judges case, Justice Verma spoke for only himself and four other judges. Justice Pandian and Justice Kuldip Singh went on to write individual judgments supporting the majority view. But Justice Ahmadi had dissented and Justice Punchhi took the view that the CJI need not restrict himself to just two judges (as mentioned in the ruling) and can consult any number of judges if he wants to, or none at all.

For the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues. Besides, the President became only an approver.

What was done to deal with the confusion?

In 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegium (see box).

Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judges Case”.

What are the arguments against the collegium system?

Experts point to systemic errors such as:

The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;

A closed-door affair without a formal and transparent system;

The limitation of the collegium’s field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.

What moves were taken to correct these?

The Law Commission in its 214th Report on ‘Proposal for Reconsideration of Judges cases I, II and III’ recommended two solutions:

To seek a reconsideration of the three judgments before the Supreme Court.

A law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.

What is the suggested alternative to the collegium?

A National Judicial Commission remains a proposal. The Constitution (98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. It provided for the constitution of an NJC to be chaired by the CJI and with two of the senior-most judges of the Supreme Court as its members. The Union Law Minister would be a member along with an eminent citizen to be nominated by the President in consultation with the Prime Minister. The Commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest judiciary.

SC guidelines on appointments

1 The term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requires consultation with a plurality of judges in the formation of the opinion of the CJI. The sole, individual opinion of the CJI does not constitute consultation.

2 The CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four senior-most judges of the Supreme Court. As far as the High Courts are concerned, the recommendation must be made in consultation with the two senior-most judges of the Supreme Court.

3 Strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority in respect of each senior judge who has been passed over. What has to be recorded is the “positive reason for the recommendation”.

4 The views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI along with his views to the extent set out in the body of this opinion.

5 The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations.

6 Recommendations by the CJI without [such compliance] are not binding upon the government.

7 The transfer of High Court judges is judicially reviewable only if the CJI took the decision without consulting the other four judges in the Supreme Court collegium, or if the views of the Chief Justices of both High Courts [involved in the transfer] are not obtained.

8 The CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government for non-appointment of a judge recommended for appointment.

9 The CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a puisne judge. The consultation need not be limited to colleagues who have occupied the office of a judge or Chief Justice of that particular High Court .