Respected Collegium Judges, Other Judges and the Heavenly Judge,
The Central government promulgated an ordinance on May 16, increasing the strength of the Supreme Court from 34 to 38 judges (including the Chief Justice of India). There are no apparent reasons why the circumstances warranted an emergent ordinance rather than introducing a Bill before Parliament, whose next sitting is barely a month away.
What followed was the immediate filling up of five seats in the Supreme Court in remarkable cooperation between the Court and the government. On May 27, the Court sent the government its recommendations to appoint High Court Chief Justices Sheel Nagu, Shree Chandrashekhar, Sanjeev Sachdeva and Arun Palli, and a woman advocate of the SC, V. Mohana. This was cleared post-haste and on June 2, they took their oath of office.
Across social media, there was a flurry of reservations and objections from prominent personalities and common folk. Three Chief Justices were said to have favoured godmen or people in high office; the fourth was said to have espoused regressive views on gender.
The fifth, the sole woman appointee, was a direct appointment from the Bar to the Supreme Court, under Article 124 of the Constitution. Only exceptionally fine lawyers are supposed to make the cut; that number has not crossed a handful since 1950 and includes some of the greatest of the greats. It includes former Chief Justice of India (CJI) SM Sikri, who held the fort in the Kesavananda Bharati case to enunciate the concept of the Basic Structure of the Constitution, thus protecting the rights we hold most dear; as well as two of our finest judges in recent memory, Rohinton Fali Nariman and Indu Malhotra.
Soon I will cross 50 years at the Bar, in service both as a professional and public interest lawyer and mediator. I have scoured several sources of information about Justice Mohana to find any traces of individual stellar achievement, but none were forthcoming.
It is not as though there were no alternatives to these five. I will just give a couple of names. GS Sandhawalia, now Chief Justice of the Himachal Pradesh High Court, is one of the finest judges this country has produced and has repeatedly scored marks for decisive action underpinned by the highest judicial values. Revati Mohite Dere, Chief Justice of the Meghalaya High Court, has won encomiums for her brilliant stint of 13 years at the Bombay High Court. Incidentally, in 2018, she vacated the gag order restraining media reportage of the Sohrabuddin Sheikh murder case. Another fine judge is Aparesh Kumar Singh, now heading the Telangana High Court.
Let us shift to a lower court, and southward. On June 2, six names were approved by the Collegium for appointment to the Karnataka High Court, out of the 10 names sent by that Court. One of the names that did not find favour was Ms Poornima Hatti. To my knowledge, she is outstanding as a lawyer, was a partner at a prominent law firm and has played a vital role in a prominent international video which sought to capture the mediation styles and approaches across the globe. I can speak to the quality of her contribution because I was the chosen mediator for India in that endeavour. If appointed now, and remember she is a woman, she would be in line to be the CJI one day.
Was that the reason, pray? Two other aspects merit consideration, the first of which is particularly disturbing on its face.
The Collegium of the three seniormost judges for making appointments to the High Courts presently comprises the CJI and Justices Vikram Nath and JK Maheshwari. Justice Maheshwari demits office on June 28; Justice BV Nagarathna, who hails from Karnataka, then enters the Collegium. Do we not detect a sign of haste in pushing through these, and a host of other appointments? This will probably be Justice Maheshwari’s last official act, for which he will bear no responsibility or consequence. So the question is: why the haste?
The other aspect, which is a question now but may become disturbing after the answer, is the role of the consultee judges. Again, this is not a creation of statute. But then neither was the Collegium in the first place. The consultee judge is the judge who has served in the particular state’s High Court to which the appointment is being made, either for a length or as a bird of passage. In particular relation to Karnataka, may we please know what each consultee judge opined about the relative merits and demerits of Poornima Hatti and the six chosen ones?
From the answers to the above sets of questions, we will be able to judge for ourselves whether the chosen ones meet our high expectations of those who adorn judicial office. Or whether the rejected ones would be far better choices. Crucially, we, the public of India, would also then be in a position to assess the working of the Collegium.
Do we have the right to ask these questions, and to receive these answers? I ask as a Senior Advocate and a lawyer who has put in half a century serving the system. I ask on behalf of my colleagues at the Bar, which include not just the better-placed ones but, more importantly my junior colleagues, because they will bear the brunt of judges below par. But make no mistake; all of us are watching with dismay. And this is the input I have received from a law student as I write; he was enthusiastically ready to enter the profession. Today, he said: “Sir, I thought merit would carry the day. Now, I think merit is meaningless; it all depends upon who likes whom.”
All of us seek answers, My Lords. Your answers may disappoint us, but do not disappoint us by not answering.
And then it came to my mind, the extraordinary special remedy; the help of the helpless. In vain, I looked to Earth’s vain shadows, then Heaven’s morning broke (borrowed from that great hymn Abide with Me). And there shone the Ultimate Judge, who will judge us all, the judged and the judges on earth. Our Heavenly Father and my Uparwala Bade Bhai. In Thee we trust. Thy Will be done.
Render your Judgment and your Divine Retribution. To Him, I can say only this: “As your Lordship pleases”.
As for the Collegium, as an institution, a requiem to it may well be found in the memorable words of Winston Churchill addressed to Neville Chamberlain, who will go down in history as a constant appeaser : “In God’s name, Go.”
