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Eminent Jurist Fali Nariman Warns That Boycott Of Collegium By Senior Judge Will Weaken The Supreme Court

Justice Jasti Chelameswar

Justice Jasti Chelameswar, a senior judge of the Supreme Court, has announced that he is boycotting the proceedings of the Collegium, an august body which has been set up by the Supreme Court to appoint new judges to the High Courts. This unprecedented step by a senior judge has sent shock waves across the Country.

The Collegium is headed by Chief Justice T. S. Thakur and comprises of Justices A R Dave, J S Khehar, Dipak Misra apart from Justice Chelameswar. It has the grave responsibility of screening candidates for the position of judgeship of High Courts and of ensuring that only meritorious and deserving candidates are appointed.

Opaque system of approval of candidates for judgeship

Justice Chelameswar has been stunningly blunt in his criticism of the Collegium.

The learned Judge stated that the system adopted by the Collegium for selection of judges is not at all transparent and that no reason or opinion is recorded for the decisions taken.

Even known corrupt persons are considered

He also stated that two people in the Collegium decide the names and come back to the meeting and ask for a yes or no. He also stated that if a known corrupt person is being considered for appointment as a judge of the Supreme Court and if one of the members of the Collegium says he has evidence to back his opposition to his appointment, the person’s selection was still being decided on the basis of a majority vote instead of being outright rejected on the basis of the merit of the evidence provided by the single member of the Collegium.

“Ganging up” in the Collegium

Justice Chelameswar made the shocking disclosure that “people gang up in the Collegium” and overrule the objections of the other members of the Collegium.

By this process, genuine objections are not being considered and undesirable candidates are chosen to be judges of higher courts, the learned Judge said.

Understandably, this sorry state of affairs in the Supreme Court has alarmed eminent jurists.

“Bargaining” in the Collegium

Justice Markandey Katju, the retired judge of the Supreme Court, lamented that some of the “worst appointments” in the Supreme Court and High Courts have been made by the Collegium system due to its lack of transparency and opaqueness.

Justice Katju explained that he has been a Judge for about 20 years and knows fully how the Collegium system really operates. It is a “You scratch my back and I will scratch your back” system he said.

He added that the members of the Collegium “bargain” with each other “to get their men selected”.

Merit is thrown to the winds and many undeserving persons are selected” Justice Katju said in a chilling tone.

Resign first and criticize later: Fali Nariman

Eminent Jurist Fali Nariman also expressed his shock at the goings-on in the Supreme Court. He described Justice Chelameswar as an “otherwise excellent and sober judge” but said that he is “greatly perturbed” over the learned Judge going public over the alleged lack of transparency in the working of the Collegium system.

Fali Nariman described the concern of Justice Chelameswar about the lack of transparency as being “commendable”. However, he pointed out that the fact that the learned Judge went public about it implies that the other members of the collegium are not unduly concerned about the alleged lack of “transparency”. He also stated as the other judges are unlikely to speak up about the issue, the public will have only one side of the picture.

Fali Nariman suggested that a serving Judge should not publicly criticise the institution but should resign from his post if he finds the situation unbearable.

If a judge in the Collegium doesn’t like the way it functions (for lack of transparency or any other) he can quit and then complain about why he quit. People would then understand him better,” Nariman said.

Nariman also quoted Chief Justice Munir’s advice:

If you think it is a matter of the gravest importance and you cannot in all conscience accept it or work with it, you can and you must if you are true to your oath resign so that the system must go on; people will know by and by why you resigned and will then sort things out”.

Fali Nariman also offered “unsolicited advice” to the judges of the Supreme Court that “the citadel never falls except from within”, implying that the learned Judges should take all steps necessary to reconcile their differences and work as one team as otherwise the consequences can be draconian for the institution.

CJI asked why there is “mistrust” by the Government to the Collegium’s recommendations

It may be recalled that the learned Chief Justice of India had a few days ago warned the Government that the judiciary would be “forced to interfere to break the deadlock” if the Government continued to drag its feet in giving approval to the names recommended by the Collegium.

Don’t try to bring this institution to a grinding halt. We won’t tolerate a logjam in judges’ appointment. It is stifling judicial work. We will fasten accountability now. Why is there mistrust? If this logjam continues, we will be forced to interfere judicially. We will ask for every file that was sent to you by the Collegium,” the learned Chief Justice had said.

However, the startling disclosures by Justice Justice J Chelameswar and Justice Markandey Katju that the Collegium may have approved persons who are not deserving of being conferred high positions raises doubts as to the credibility of the entire process of appointment of judges.

Fait Accompli?

It is to be noted that while Justice Chelameswar has stated that he will not attend meetings of the Collegium, he has not withdrawn from its membership. Instead, he has requested the Collegium to send him their recommendations in writing so that he can peruse them and accord his views thereon. If the Collegium does accept this request, then the demand for transparency in the functioning of the Collegium and for recording its proceedings in writing will ipso facto be met. This will be the most dignified and sensible manner to resolve the crises!


24 comments on “Eminent Jurist Fali Nariman Warns That Boycott Of Collegium By Senior Judge Will Weaken The Supreme Court
  1. b.s.waghela says:

    Instead of asking Justice Chelameswar to resign, Fali should stop practicing as Lawyer. He has crossed 70 years of age and perhaps has lost mental balance. Present confrontation between the Executive and the Judiciary is mainly because of Fali and the bunch of some adamant judges; who do not want to surrender their privilege of indulging in unfair practices ?

  2. Padma Reddy S says:

    It’s correct to a large extent

  3. Balwant Singh Rawat says:

    Instead of making NJAC (i.e. for appointment), Govt is suggested to form NJTC (i.e. for termination) for earliest effective system of taking disciplinary action upon guilty judge & official of judiciary. All huge pending cases in judiciary are mostly appeal, and caused by injustice/corruption of lower court only. Injustice & lingering in cases by judiciary is main reason behind raise of corruption, naxalism & terrorism in nation at present. NJTC will remove all corruption of appointtment automatically.

    • RangamGCV says:

      Yes. I agree with Mr. Rawat. Judiciary, instead of acting like an opposition party, should see that the concerns of elected leaders should also be given importance. Accountability of Judiciary should be fixed and not more than certain number of adjournments should be allowed by any Court, whatsoever. Further, movement of criminals from Jail to court for hearing should be avoided.

    • b.s.waghela says:

      NJTC is passed by both the Houses of the Parliament and received President’s assent. But unfortunately 4 judges of the Collegium are doubting / challenging the wisdom of 800 members of the Parliament. In fact some SC / High Court judges are running parallel Governments ; and they do not want to lose control. Parliament should think of impeachment proceedings ?

  4. JR says:

    I personally feel,judges should not appoint themselves.NJAC appeared a better alternative provided politicians do not try to serve their purpose.Judiciary expanding their domain in to executive and also trying to portray anti establishment tendencies is also not good for the country.A coterie of some senior lawyers dominating the SC does not augur well for a democracy like ours.

    • if we allow NJAC to interfere naturally it would be the indian judiciary’s death knell friend, so none lawyer worth the name should allow PMO or Lok sabha to interfere, after all judiciary is meant for common man, politicians would twist as they do the country today you may see. tks

  5. it is just like a question why did we choose ‘independent India’ ? Are we really ‘independent India’? We know we are yet to mature that is what Sir Winston Churchill said then to then PM of Britain Clement Attlee, ‘do you think Indians really matured to be independent under a democratic constitution?’ obviously referring to very Britain itself why there was a need of ‘Magna Carta’in 1215 AD during King John’s time again Restoration under Oliver Cromwell… that way India needs to go through so many such situations, as politicians today are worse humans just fool poor man by so many ‘free bees’ do you think ‘ can there be Free Lunch?’ under very Economic Theory. So too our judiciary need to undergo so many revisions, true judiciary can never be under politicians control, as in India, ‘if politician’ becomes a judge, ‘do you think he would behave like the USSC judges?’ ..truth is ‘No chance’ so NJAC blissfully decalred ‘Ultra vires’ in that effort to Falli really helped why, knowing the ‘deficiency of the collegium even much earlier’ .Reason is every thing needs to evolve, if not , So Maximilian Robertspeare might emerge sooner or later… such problems settle issues….it is like a ‘Man’conceived,Man is obviously a combination of ‘Prana, Mind, and speech’ = Heaven = Prana; Mind = Sky; and Speech = Mother Earth; again can be reapportioned as ‘Samaveda, Yajurveda and Rigveda’ . To understand visit and read ‘Brihadaranya Upanishad’ a great granery of indian yore.

  6. M R K Gandhi says:

    The acts of justice Chalameswar have shocked many. Justice Katju now joined the band wagon and many more may join. If Jus. Chalameswar is conscience keeper, he should look back his own elevation and his participation so far.If Mr. Katju speaks now, the question why he did not speak while holding the post and why he presided over collegium. As rightly, put by Shri Fali Nariman he was also appointed in the same manner. When he was benefited by the same system; he has to carry the burden. The timing appears to be critical and suggest political inputs for his strange conduct. In any committee system, some times individual members views may be considered and cannot be carried. Why he is not speaking about names of candidates whom he does not approve and reasons with reliable evidence. In any event he has weakened the institution of which he is benefited. He should resign and it will be decent.

    • HCA says:

      Is it wrong of Justice Chelameswar to ask for transparency in the working of the Collegium system?
      Why should he resign just for seeking transparency?
      By questioning Justice Chelameswar’s boycott, eminent Jurist Fali Nariman is only seconding that the Collegium System should continue to work in a Non-transparent manner!!!!!!
      Hats of to Justice Chelameswar to take on the mighty from within the citadel. His actions will strengthen the system and will be remembered forever.

  7. Janaki. says:

    Even justice Chalameswar himself was appointed by the Supreme Court Collegium. Why did he accept this appointment.

  8. Nem Singh says:

    When you don’t have the courage to fight within the family you take the matter out this has to be done by Justice Chelmeshwar…… Whether he is right or not know the members only none other.

  9. Rajesh Bhardwaj says:

    Sir, this bargaining in august bodies I think is nothing new. I had experience ( sad) of this when I became a member of the Local Placement Committee ( LPC) in income tax Delhi . The Chairman of the LPC Sh. Lax man Das used to tell me that what ever he decided was to be approved by us ( there was one more member) and we were to sign on dotted line. No advance agenda of meeting or proposed transfers and postings was circulated in advance. He used to get wild if I sought time to consider some proposals. I understand the situation is equally depressing in many such bodies where even slightest consideration, leave alone dissent, is frowned upon or worse as it is the top man’ s prerogative to ride roughshod over all. Not surprising Hon. SC has similar problem.

    • vswami says:

      Very true! As rightly said, such a trend has come to be increasingly experienced by almost everyone having a discerning mind to exhibit,more so if intent upon sticking to the rarity- called courage of conviction. And,is so, not just in relation to ‘august bodies’ of the kind in mind, but to every other.
      For instance, one can readily think of, for an analogy, say, a lowly governing body of a housing society (comprising members / owners of a building complex- Flats/Apartments).

      Pithily stated, the sadly prevailing, for long, sad state of affairs, in every walk of life,if given some serious thoughts, could be readily traced to the fact of life, the root cause- that is, even once-upon-a-time-honored ideal concepts such as e.g. ‘august’ and ‘courage of conviction’ have, over the time,been violently subjected to a deplorable change, from bad to worse, then to the worst, with no further level to sink to.

  10. i agree with Mr. Fali. In government if you don’t keep quiet, better resign; same principle works; fact is you cannot cause logjam of any system.

    that way opposition parties do work in lok sabha or rajya sabha.

    We need to rectify at the basic applications level like at elections.

    May be one is good the other man may not be that good that does not make all bad, but good to correct the men, that way the idea of ‘reformative ‘ jurisprudence came into being, as we cannot get every one great men of all truth and no falsehood.

    I appreciate if Jus Mr. Chalameshwar could not stand his option is resign without any written misgivings just but saying he cannot serve any longer, that is enough message to the collegium.

    i am in complete agreement with Mr Fali. I had seen his work at hon SC and i have great regard for his views like i have for Soli sorabjee.

    • Although Mr.Nariman is a great lawyer,his faith in collegium system where judges selecting their heirs themselves inspite of selection of Somany wrong/corrupt judges including many CJIs and his extreme distrust of Executive/political class(some what understandable)is inexplicable.Transparency is the key to success to any appointment.Executive’S role is unavoidable in Democracy however we may dislike.Judges cannot usurp Executive’s brole.Absolute power makes absolute corrupt in any instituition, however great it may be.Checks& balances are very essential in any selection process.People are ultimate are the decision makers in democracy in spite of many pitfalls.

  11. see in US Supreme court, selections from all kinds of people, but once they take the seat though they were earlier politicians still after taking over they change their roles, they no longer go by the dictates of the political parties, so once they assume the highest court they assume special role. that way it might here too judges do change except a very few, that very few would leave on their own sooner or later.

  12. i agree with Mr. Fali. In government if you don’t keep quiet, better resign; same principle works; fact is you cannot cause logjam of any system.

    that way opposition parties do work in lok sabha or rajya sabha.

    We need to rectify at the basic applications level like at elections.

    May be one is good the other man may not be that good that does not make all bad, but good to correct the men, that way the idea of ‘reformative ‘ jurisprudence came into being, as we cannot get every one great men of all truth and no falsehood.

    I appreciate if Jus Mr. Chalameshwar could not stand his option is resign without any written misgivings just but saying he cannot serve any longer, that is enough message to the collegium.

    • malavika says:

      In US the President nominates a serving Jugde(Not lawyer). And the Senate, consisting of Republicans, democrats go through his record of judgments and have hearings in the Senate where this prospective Justice is Questioned and vote is held. A very transparent process.

      In India what we have is a joke, a few Justices in a dark room decide who will Lord over us for the rest of their lives. No wonder a Cong advocates son SC Justice.

  13. Justified Dissent Strengthen Democracy. Not Weaken even Supreme Court. Dear Mr Fali Nariman please Note.

  14. vswami says:

    “……This will be the most dignified and sensible manner to resolve the crises!”

    On this one observation, as selected, of the eminent jurist with his rich lifelong experience and pragmatic approach, anyone may look up the comment as put in a slightly different perspective and shared on Facebook !

  15. vswami says:

    “……This will be the most dignified and sensible manner to resolve the crises!”

    On this one selected observation of the eminent jurist with his rich lifelong experience and pragmatic approach, but as put in a slightly different perspective (shared elsewhere):
    Is it not a sad commentary that a ‘senior’ judge, stated to have independent /dissenting views in the subject matter, has ‘stopped attending meetings of the collegium’ ? ; instead of, as would have been normally expected of, attending and making his presence ‘felt’ , also insist upon to the end of having taken on record such views by the collegium. !
    The point which, as perceived, requires a serious consideration, by one and all devoutly and honestly concerned: Would that not have been a better (by any standard or sound test) course of action for anyone of his stature to have followed, so as to have demonstrated, unequivocally , own ‘courage of conviction’? And,is that not akin / stands no less comparison to instances of often- repeated deplorable practice of elected representatives of THE PEOPLE, in the ‘opposition’, staging a ‘walk out’ (or rushing into ‘the well’) of the august ‘HOUSE (s ), for no rhyme or reason, but impulsively on the drop pf a hat or two- instead of sitting in / through and help in having a healthy debate on any matter on the agenda, to take on to its ‘logical’ or inevitable-however much -tried conclusion..
    Not but not in the least, the other point of poser /most concern, hence requiring to be given deep thoughts, as needed: Do not, by giving any such publicity, of its kind, in the media, -especially to any such matter obviously having far reaching consequences from the larger interests of the nation,- have the inherent potential to further undermine, unintended or otherwise, the ‘dignity of the judiciary’ – as opposed to striving the best to improve upon the already obtaining saddening scenario ?!
    Aside: There is no gainsaying, as repeatedly said with equanimity, -today’s lawyers are, inescapably, to morrows’ judges. On that premise, the intriguing poser often raised in knowledgeable circles, but never even attempted to be openly answered: What steps have been /are being taken by the men in power , for decades now, to try and improve upon the ‘quality’ of the lawyers profession , in its profound sense ?
    For better and intimate insight into the above indicated intricate problem area,. anyone, if so minded, may care to look up and appreciate what a few of the reputed leading lawyers themselves had to say/ strongly advocate for!

    http://newsalert.thehindu.com/a/hBXzOIoB9HlHIB9HlJNAAAbF-hI/hind1011

    For a change (just to lighten the moment of ‘life’- not of ‘truth’- an impossible thing to ever attempt at, being no less impossible than to weave a fabric without yarn ; hence the idiom- “spin someone a yarn” !);

    “Dickens v. Lawyers – The New York Times”

    http://www.nytimes.com/…/…/06/opinion/dickens-v-lawyers.html

    • Rajiv Tyagi says:

      Fali nariman has been espousing all the wrong causes since the last couple of years. When one questions as to why should the judges select judges – Nariman supports the judges. When the process of selection by judges is criticized Nariman still supports the judges. He has lost his sanity. Why should justice Chelameswar resign. He should stay put in the collegium and make public all his objections to the appointment of corrupt and undeserving judges to all courts. If the example of SC has to be followed then all government employees should be selected by a collegium of government employees and so on and so forth. The Government itself becomes redundant.

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