MANY HAVE WRITTEN SO FAR on the collegium system of appointment of judges, a system evolved through a judicial coup. None, however, have written their own account of the appointment.
In evangelical meetings, at times, certain persons come up to speak about the miracles that occurred to them. They are known as ‘blood witnesses’. This, too, is the statement of a blood witness.
After I got my law degree, I enrolled myself as an Advocate before the Bar Council of Tamil Nadu during July 1976. After twenty years of practice in the High Court and subordinate courts, in 1997, I was designated as a Senior Advocate by the full court of the Madras High Court. Thus, I had 30 years of practice in all. I was an elected member of the Bar Council for a term of Five years. I was also an office bearer of the Madras High Court Advocates Association. During my tenure, I had actively participated in human rights movements and had also appeared in a number of human rights violation cases.
How did I, an advocate, become a judge? This recollection will try to answer that. A question may arise as to how I got to know about my appointment matters when I was also saying that the files relating to recommendations of the collegium are kept confidential. I wish to write what I know about the truth relating to my appointment. Only then will the true nature of the collegium system be known.
This documentation is informed by information gathered by me in a personal capacity, and also from newspaper articles, from collegium members, and from the chief justice.
By 1996, I had practised as an advocate for 20 years and had also crossed 45 years of age. Justice M. Srinivasan, who was a High Court judge, had a lot of regard and respect for me. He was known for his strictness in court. He had observed the way I practiced law and recommended my name to the then Chief Justice K.A. Swamy for appointment as a judge. Justice Srinivasan informed me that the Chief Justice told him that I was young and that my name can be considered later. Till then, it did not even occur to me that my name would be in the reckoning for a judge’s post.
It was at that time that my daughter, Sakthi, was born. In order to spend more time with her and reduce my own workload, I realised the only was perhaps to be designated as a senior advocate. In a November 1997 meeting of all the judges, it was decided to designate me as a senior. I returned all the case bundles I was arguing to the parties concerned and also closed down the large office that I was running. After that, I accepted only senior briefs. While the close contact that I had with my old clients started waning down, I got the chance to try cases in other fields of law.
In 1998, Justice Sathiadev, who had retired eight years before, came to Chennai with his wife. When I visited him one evening, he gave me a present. Without knowing what the gift was, I asked him what was the need for the present. He told me it was my wedding present.
I was shocked and told him, “You are giving me a gift eight years after I got married!” He replied, “You did not invite any judge for your wedding. Now I am an ordinary Sathiadev.” What could one say about his affection?
In the conversation that followed, he told me that I had spent enough time as an advocate and that I should make efforts to become a judge.
“Nobody who knows my political background will make me a judge,” I said.
“I do not know about that, but at some point in future if the post of a judge comes to you, you should not hesitate for even a minute and you should be mentally prepared to accept it without rejecting it,” he said, sternly, “You should give me an assurance about that.”
I assured him that I would do so and took his leave.
A few years after this, on multiple occasions, Justice V.R. Krishna Iyer touched on the subject of judgeship with me. Whenever he met any senior judge of the Madras High Court, he recommended my name for the post of a judge to them. First, he proposed this to Justice K.G. Balakrishnan, who took over as Chief Justice of the Madras High Court in 1999. But Justice Balakrishnan was in Chennai for only nine months, after which he was elevated to the Supreme Court. In the short period he was here, he did not attempt to fill up the vacancies in judges’ posts, but he did mention to me personally that Justice Iyer had recommended my name.
The first real opportunity came in 2001.
Justice Narayana Kurup, who was a senior judge in Kerala, was transferred to the Allahabad HC. He had only one year to go for retirement. With Justice Iyer’s help, Justice Kurup was transferred to Madras HC instead of Allahabad HC. When he came to Chennai, he joined as the second senior-most judge (Justice Iyer had already spoken to him about me) - with Chief Justice N.K. Jain steering the Court and Justice V.S. Sirpurkar was the third senior most judge.
One afternoon in March 2001, Chief Justice Jain sent word asking me to meet him. Before meeting me, he had met five senior advocates like me. When their consent was sought for recommending their names for the post of judges, the five senior advocates declined. When I met him, he mentioned his plan to propose my name for judgeship. Immediately the faces of Justices Sathiadev and Justice Krishna Iyer came to my mind. Without any hesitation, I gave my consent. Chief Justice N.K. Jain told me that I need not give my consent immediately and that I could consult my parents and then let him know.
When I told him that my parents were not alive, he asked me to consult my wife and then let him know. I immediately told him that there was no confusion in my mind about it and that two former judges had got my assurance on this and then took my leave. I wrote a letter giving my consent the next day.
In the next day's meeting of the Collegium my name was not in the list. Shocked by this, when Justice Kurup enquired, Chief Justice Jain seemingly replied, “Chandru said he would consult his parents before giving his consent and went.”
Justice Kurup contacted Justice Krishna Iyer immediately, who then phoned me rather angrily, asking whether I had a re-think on accepting the post. After gathering my own thoughts for a moment, and trying to make sense of the situation, I told him clearly that I could not have told Chief Justice Jain about consulting my parents since they were both dead. Justice Krishna Iyer immediately informed Justice Kurup about this.
Since my name was not included in the meeting of the Collegium scheduled for that afternoon, Justice Kurup refused to attend the meeting. It was in the meeting held the next day that the Collegium unanimously agreed to recommend my name. I was asked to come to the Chief Justice’s place on March 16, 2001 and my profile, income-tax statements and my consent signature were obtained.
“You richly deserved that post,” Justice Sirpurkar told me the next day in Court.
There is no secrecy surrounding the names that the High Court Collegium recommends for the post of judges. One day after the recommendations are made, the High Court corridors are abuzz with the names of those recommended, , including, at times, a few imaginary ones. Once the list is sent to the Supreme Court, the information is conveyed to the Union Government and the State Government. The Union Government then immediately asks the Intelligence Bureau (IB) to dig into the background. Sometimes, these names leak out to specific circles through the inspector of the IB, and at times through State government officials when they are examining them.
Within a few days of getting my consent, a Tamil newspaper published a news report like this:
‘There are six judges posts vacant in the Madras High Court, for which eight names have been recommended. Advocates D. Murugesan (Puducherry Government pleader), V. Dhanapalan, Idayathullah (Government pleader), Sriram Panchu, Sudhakaran, Raman Lal, Kannadasan and K.Chandru have been recommended. This list is under the consideration of the Union Government.” (Daily Thanthi, May 9, 2001)
Even though I was a senior advocate, my name was placed last in the list and below the names of my juniors. Chief Justice N.K. Jain did this, supposedly, as he had to please other collegium members. Moreover, eight names had been recommended for six posts.
Within a few weeks of the list being sent, the 2001 State Assembly elections were held in Tamil Nadu. Jayalalithaa won the election, assuming office as Chief Minister . From her side, there was serious objection to the list of names sent.
At that time, the DMK was a member of the coalition Union government headed by Prime Minister Atal Behari Vajpayee. Murasoli Maran was the Commerce and Industry Minister. Each of the eight times, CJ Jain recommended the names, it were those of practising advocates and not service judges. Whenever names are recommended for the post of judges in the High Court, the ratio of advocates practicing in the High Court recommended vis a vis senior district judges recommended is 2:1.
One senior district judge at that time, Ashok Kumar, had not been recommended for appointment, and with only two years of service left, this was his last chance to become a High Court judge. DMK had a soft corner for him. Objections were raised by the State government, and with added pressure from DMK, the list was sent back to the High Court for reconsideration, with the request that they adhere to the 2:1 ratio in filling up the posts. The Union Government and its Law Minister Arun Jaitley said there was no politics in the list being sent back.
Thus, I had missed the chance of becoming a judge.
By the time the list came back, on September 12, 2001, Justice B. Subhashan Reddy had assumed office as Chief Justice of the Madras High Court . By then Justice Kurup, too, had gone back to Kerala. The responsibility of re-examining the list of names and sending a new list fell on Chief Justice Reddy.
That year, at an event organised on the day of the renowned Tamil poet and writer Bharathiar’s birth anniversary, CJ Reddy and Justice V.R. Krishna Iyer shared the stage as special guests. CJ Reddy profusely praised Justice Iyer, comparing him with Lord Krishna, saying, “He will always be our Guru!”.
Finishing his speech, as he sat next to Justice Iyer, the latter asked him, “You said I was your Guru - where is the Guru Dakshina?”
“You ask for whatever you want,” CJ Reddy replied.
“Make Chandru a judge,” Justice Iyer told him. CJ Reddy must have been caught in a predicament.
“Everyone knows that Kusela, (poor friend of Lord Krishna) went to Dwaraka to meet Lord Krishna seeking help,” I was later quoted to have said to an English weekly magazine based in Delhi, “But in my case, this Krishna, leaving aside all his pride and self-respect, asked a Chief Justice to elevate me as a judge.” (The Sunday Indian 16.8.2010).
CJ Reddy, who said he would pay the Guru Dakshina, did not talk about it later. He did not recommend any of the names in the list of judges that was returned. In 2001, the Collegium recommended only two names - A. Bhagyaraj and Kulasekaran - both of whom were appointed judges. After that for two years, no names were pit forward despite many vacancies.
In 2003, apart from CJ Subhashan Reddy, Justices Sirpurkar and Jayasimha Babu also became members of the collegium. That year the names of eight senior district judges, including, for the first time, Ashok Kumar’s, were recommended. On April 3, 2003, those eight assumed office as additional judges of the High Court. No one questioned how a list containing only district judges and no practicing lawyers was being sent.
In the same year, advocate N. Kannadasan’s name (who was also there in the 2001 list) was recommended for the post of High Court judge. In the 2001 list, only Sriram Panchu and I were the designated senior advocates. Yet, from that list, only one junior lawyer - Kannadasan’s name - had been put forward, with no reasoning given.
In April 2005, the terms of office of the eight district judges (elevated as additional judges) recommended by CJ Subhashan Reddy came to an end and given an extension for four months. Justice S. Ashok Kumar was granted two extensions once on August 3, 2005 for a year, and again on August 3, 2006 for six months. Finally on February 3, 2007, he was appointed a permanent judge and transferred to the Andhra Pradesh High Court, from where he completed his tenure and retired on July 9, 2009.
I wish to write what I know about the truth relating to my appointment. Only then will the true nature of the collegium system be known.
But more interesting things followed. The then Chief Justice recommended Justice Ashok Kumar’s extension without the Supreme Court Collegium’s approval. Senior Advocate Shanti Bhushan filed a case in the Supreme Court stating that Kumar’s appointment was invalid and that his appointment as a permanent judge should be quashed. As proof for this case, it was pointed out that the Madras High Court Chief Justice Markandey Katju had said in an interview that he had not recommended Kumar’s extension of service. Still, the case was dismissed.
It was held that S. Ashok Kumar had been given many extensions in service as additional judge and on none of those occasions cases were filed. Thus old issues cannot be re-agitated. The judges said that in the issue of giving a six-month extension in 2006 and in making him a permanent judge in 2007, the full Collegium’s opinion was sought and on all occasions the views of the Chief Justice had been sought:
The Supreme Court observed:
“Again on 3.8.2006, the then Chief Justice of India who was earlier of the view about unsuitability of respondent No.2, along with his senior colleagues, extended the term for six months on the ground that the time was inadequate to obtain views of then Chief Justice of the Madras High Court. It is to be noted that at different points of time, starting from the point of initial appointment, the successive Chief Justices have recommended for respondent No.2 to be made permanent. That situation continued till 3.2.2007 when the recommendation of the then Chief Justice of the Madras High Court for appointing respondent No.2 as a permanent Judge was accepted. The grievance of the petitioners as noted above is that collegium was not consulted. We have dealt with the legal position so far as this plea is concerned in detail above. Before the Chief Justice of India, at the time of accepting the recommendation for respondent No.2 being made permanent, the details required to be furnished in terms of para 13 of the Memorandum were there. There was also the recommendation of the then Chief Justice of Madras High Court who reiterated the view of his predecessor in this regard”
Justice Katju was appointed in November 2004 as Chief Justice of the Madras High Court and he continued in that position t till November 12, 2005. On April 10, 2006, he was elevated to become a judge in the Supreme Court, from where he retired on November 19, 2011. Later, he functioned as Chairman of the Press Council of India for three years. During this period, his interviews to the media and his posts on Facebook stirred many controversies. In one interview, he said that a corrupt judge in Chennai occupied his post thanks to an influential politician.
In an interview to The Print, Justice Katju was asked why he did not talk about this in 2005 itself when he was the Chief Justice of the Madras High Court. His answer to that question was:
“I could not talk about this issue in public when I was chief justice because of the controls on the judiciary and the unwritten code of ethics. That is why I did not go to the media. However, I did not remain silent. When I met the Chief Justice of India in Delhi, I mentioned this to him in person and also through a written note. If you look at the Intelligence Bureau report, you can confirm my statement. After I retired in September 2011, following requests from a few Tamil friends, I shared a few of my experiences as Chief Justice of the Madras High Court on Facebook. The issue is not why I did not share it at that time itself. Was what I said true? The first three judges of the Supreme Court R.C. Lahoti, Y.K. Sabharwal and R. Ruma Pal were part of the collegium, I had written a letter to Lahoti that the corrupt judge should not be allowed to continue in his post, which Ruma Pal mentioned in a statement later. Besides, the details of a letter written by the then Prime Minister Manmohan Singh on the political compulsions of letting that particular judge continue have come out. A few newspapers have mentioned me by name and said that I should not have recommended that corrupt judge’s name for the post of a judge in the High Court. But never did I propose that corrupt judge’s name. His name was recommended by my predecessors. You can ask me what I did when I came to know the truth. I voiced my suspicions to the then Chief Justice of India. He was the one who should have taken appropriate action. I could not have made this information public because of the rules that bind a judge.”
For nearly two years after CJ Subhashan Reddy took up the mantle in 2001, names of High Court advocates were not being significantly recommended. In 2004, the Collegium consisting himself, and Justices Sirpurkar and R. Jayasimha Babu recommended the names of six six advocates and three district judges for the post of judges and sent it to the Supreme Court.
Chief Minister Jayalalithaa, who examined the list, gave her consent for only two advocates and one district judge. As her own recommendation, she sent the names of three advocates and one district judge for the High Court’s consideration. According to the established rules, the Chief Minister has powers to only give views and has no power to approve or reject the names in the list sent by the collegium. Jayalalithaa recommended a few names that she preferred.
Contradicting all this, following his retirement from the Supreme Court, Justice Markandey Katju noted”
“I must say to the credit of the then Chief Minister Ms. Jayalalithaa that she never interfered in this process and never pressurised me to recommend any name for Judgeship, nor did she ever interfere with judicial functions in any manner. Throughout my stay as Chief Justice, there was never any problem as she respected the independence of the Judiciary.”
Years later, after I had retired, in November 2014, I met former CJ Subhashan Reddy in Hyderabad. First, he told me how Justice Krishna Iyer had referred my name to him, how a few senior judges had given wrong information about me to him, and how he regretted having not been able to recommend my name during his first two years.
He also told me about how on behalf of Jayalalithaa names were proposed for appointment as judges. As far as he was concerned, he did not think there was anything wrong in chief ministers recommending names for judges’ posts. He also told me that Chief Justice should not hesitate to consider those names if they were eligible and had the necessary calibre.
The three names proposed by Jayalalithaa, he revealed, were associated with her party and opined that none of them deserved to be High Court judges. Proudly, he recalled conveying to Jayalalithaa none of them were suitable or eligible. He said that Justice Katju’s account was false, and that each time a list of names was sent to the chief minister, while giving her approval or rejecting some of the names, she would add certain names from her own end. He claims the records reflect this.
Even as the list that was initially prepared with nine names was pending, the Collegium composition changed over 2004. A new Collegium, consisting CJ Subhashan Reddy and Justices N. Dinakar and N.V. Balasubramaniam met in September that year to prepare the list of names to be recommended.
A few days before this collegium meeting, as we sat in his home for tea, CJI Reddy surprisingly asked me about my caste. I wanted to know why. He said that he wanted to include my name in the list of names to be recommended f, but a few senior judges were objecting, suspecting that I was a Brahmin. Even though he knew I was not a Brahmin, he said he wanted to be sure so that he could refute their views.
I was furious.“I have been practising as a lawyer for 28 years, of which I have been a senior advocate for seven years,” I recall saying, “I have argued hundreds of cases in this court, many of which have been reported in law journals. My annual income is also substantial. I will be happy if my name is recommended on the basis of my eligibility and calibre. If caste is the most important reason to get this post, I do not want it.” Saying this, I left his residence.
When I told him that my parents were not alive, he asked me to consult my wife and then let him know.
Yet, CJ Reddy was adamant. Due to his continued persuasion, I gave my consent letter on September 22, 2004. My name was proposed in the meeting of the Collegium and with the unanimous approval of the members of the collegium, a list of 16 names, including those of 13 advocates and three district judges was sent on September 24, 2004. My name was fifth on the list. The name of a close relative of a collegium member N.V.Balasuramanian was also included in the list. Contrary to what Chief Justice Subhashan Reddy told me, not only were the two names recommended by Jayalalithaa in that list, one of those names was placed first in the list of 16 names. Everybody knew this was to please her.
When the list was prepared, many petitions were sent to the Supreme Court. The main opposition party - DMK - had also demanded that the Chief Justice be replaced. Perhaps in response to this, the Supreme Court recommended that Subhashan Reddy be transferred as Chief Justice to the Kerala High Court. His transfer order was issued on November 11, 2004 even though he had only 101 days left to retire.
After this, a new Collegium led by a new chief justice Markanday Katju took up. How did the Katju Collegium prepare the list of names to be recommended as judges in the High Court?
He has mentioned in several articles and interviews that he would ask judges outside the Collegium to suggest names for judgeship and that he would prepare the list after including a few regularly mentioned names and that he had mentioned this to the Chief Justice of India R.C. Lahoti and got his approval.
In his book, Whither Indian Democracy, he writes::
”Although under decision of the Supreme Court, in the Judges case only the Chief Justice and 2 senior-most judges of the High Court were to recommend names for appointment. I requested the first twelve in seniority, to give me a list of lawyers they thought deserved to be elevated. I also consulted about five or six very senior lawyers. Some names were common in many lists but enquiries were made even about them. In this way, after about two to three months of daily exercise, a consensus of twenty names emerged. I recommend these names. I told the Chief Justice of India, Justice Lahoti, about the methodology I had adopted and consciously informed him that none of the recommended names had any connection of any manner with me. So, it was now entirely up to him to accept or reject them.”
“Make Chandru a judge,” Justice Iyer told him. CJ Reddy must have been caught in a predicament.
Justice Katju, who had his own method, apart from the collegium system of proposing names, prepared lists four times for the collegium. He never explained what happened, first, to the list of nine names prepared in January, 2004 by the collegium of CJ Reddy and Justices Sirpurkar and Babu and, second, the list of 16 names prepared by the new collegium of CJ Reddy and Justices Dinakar and Balasubramanian.
Instead, in the four collegium meetings held along with Justices Dinakar and Balasubramanian (held January 20, 2005; January 24, 2005; February 1, 2005; and, February 23, 2005), Justice Katju prepared a list of total of 22 names, consisting of 16 names of advocates and six district judges. There was no explanation as to how he included five names – four of them being V. Raghupathy, K. Mohanram, V. Dhanapalan and R. Sudhakar from the list prepared by the previous collegium headed by Subhashan Reddy on January 22, 2004 and the name of S. Rajeswaran from the list prepared on September 24, 2004.
Likewise, there has been no explanation till date as to how the judges who were members of the collegium that agreed and signed the list prepared on September 24, 2004 signed the new list too. Everyone knows that the names of relatives of the two judges of the collegium were included in the new list of recommended names.
The two collegium judges N. Dinakar and N.V. Balasubramanian gave their full approval to the list prepared by CJ Subhashan Reddy on September 24, 2004 consisting of 13 advocates and three district judges. The same two judges also gave their approval to the list prepared by the new collegium headed by Chief Justice Markandey Katju that had 22 names (16 advocates and six district judges). My name was left out. How could the two collegium judges give their approval to a list that was prepared by the collegium headed by the earlier Chief Justice and then approve another list prepared by the collegium headed by new Chief Justice?
This is the absurdity of the collegium system.
Later, when senior judge P.K. Misra pressed Justice N.V. Balasubramanian, who had approved both the lists, about why my name was overlooked, he seemingly responded that it was because I was repeatedly writing articles critical of many actions of the High Court in the press. If this was the reason for his objection, how did he approve my name when he was in the Collegium with CJ Subhashan Reddy?
After CJ Subhashan Reddy went to Kerala, two parallel lists were under consideration of the Supreme Court collegium - the list of 16 names sent by CJ Subhashan Reddy and the other list of 22 names sent by Chief Justice Markandey Katju. The Supreme Court was in a fix as it could not consider both the lists together.
In order to avoid this stalemate, the Madras High Court Advocates Association filed a public interest litigation before the Supreme Court, and the bench which heard the case ordered that the list sent by CJ Katju be examined. At the same time, the Supreme Court did not raise the question as to how the two judges who were part of both the Collegiums recommended one list in 2004 and also approved a second one in 2005.
An objection note was sent to the Union Law Minister regarding the names in the list recommended by Markandey Katju. Specifically, it asked why my name, which had been recommended in the lists sent in 2001 and 2004, was not accepted and a question was raised as to how, when there were complaints against a few names, their names were included in the list. Till date,we don’t have an answer.
Seventeen of the 22 names sent in the list by Markandey Katju were approved by the Union Government and the President issued warrants of appointments to those names. By this time, Markandey Katju had been transferred as Chief Justice of the Delhi High Court (on October 12, 2005), and the newly appointed Chief Justice A.P. Shah administered the oath of office to the 17 judges on October 10, 2005 and they assumed office.
In August 2014, in an article in The Hindu criticising the National Judicial Appointments Commission, Senior Advocate Arvind Datar highlighted how Justice Katju avoided political pressure in the appointments and praised how thanks to a public interest litigation he filed, the Madras High Court got 17 able judges.
For nearly two years after CJ Subhashan Reddy took up the mantle in 2001, names of High Court advocates were not being significantly recommended.
I wrote to him raising some important questions: What kind of secrecy was there in the list that Katju sent? Why did the names in the list include relatives of judges? Why did two members of the collegium approve of a different list earlier? Why did Justice Katju not completely reject the earlier list and selectively include a few names in his list. Mr Datar never responded.
Chief Justice A.P. Shah, who took over towards the end of 2005, made efforts to recommend names for judges. Along with him in the Collegium were senior judges M. Karpagavinayagam and P. Sathasivam. In January 2006, he recommended eight names (seven advocates and one district judge). My name was first on that list.
All hell broke loose. As soon as information of the list having been recommended leaked, the Advocates’ Forum for Social Justice affiliated to the Pattali Makkal Katchi (a political party) staged a demonstration in front of the Supreme Court. They wanted the list to be withdrawn and the reason cited was that all the names in the list belonged to communities “that had progressed” socially and economically. Markandey Katju, then Delhi HC’s CJ, came all the way to Madras to convince CJ A.P. Shah not to make me a judge, something that both Justices Shah and P.K. Misra later confirmed to me. Further, there was criticism from collegium members that I was a ‘communist’, overtly critical of judges in the press.
When the list of names was sent to the Supreme Court, Jayalalithaa sent a letter of objection to CJ A.P. Shah through the Advocate-General. This was not a proper procedure under the existing rules. Apart from objecting to my name, she also recommended through the letter to include a few of her party lawyers to be appointed as judges.
She had expressed her personal opinion, but was delaying sending the Tamil Nadu government’s views to the court. In March 2006, a Tamil newspaper reported:
“Aas per the judiciary’s protocol, the T.N. Govt. has to give approval to this list. That is, it has to approve the list within the six-week deadline. But when we asked an official in Delhi about this, the official said the deadline was not yet over and that the T.N. Govt. has not yet given its views. However, it is expected that the T.N. Govt. will convey its opinion before the elections.” .
In April 2006, another Tamil newspaper noted:
“Official circles say that even though the list consisting of the names of judges has been finalised, announcing the names has been kept in abeyance in view of the ensuing State Assembly elections. The Madras High Court sent nine names in March and two more names in April.”
In his book, Whither Indian Democracy, Justice Katju provides a very different account of truth, repeatedly parroting that Jayalalithaa never interfered “with judicial functions in any manner”, and that it was “another political party” - the DMK - which exerted such pressure on the judiciary
Those who are aware of these developments will realise how far apart Katju and the truth were. In the elections in April, the AIADMK lost and DMK came to power. M.K. Karunanidhi became the Chief Minister. The DMK government did not send any objections to the list of names. Once the scene changed after the election, the Union Government too did not raise any objection. On May 5, 2006 the Union Government sent nine names from the list sent by Chief Justice A.P. Shah without raising any objection to the Supreme Court.
The principal objection raised by Chief Minister Jayalalitha was that as I was appearing for persons who were charged with Prevention of Terrorism Act (POTA) offences that I should not be elevated as a judge. However, the Collegium members outrightly rejected those objections on the ground that it was a privilege of a lawyer to appear for anyone. Immediately after the Supreme Court collegium cleared my name, Justice K G Balakrishnan, who was part of it informed Justice Krishna Iyer promptly.
Along with that the Intelligence Bureau report was also available with them. The Supreme Court Collegium consisting CJI R.C. Lahoti and Justices Ruma Pal and Balakrishnan did not accept the objections raised by Jayalalithaa to my appointment. Finally, in September 2006, the then President Abdul Kalam accepted the recommendations and issued the warrants for appointing the judges.
Even though my name was recommended for a judge’s post twice in 2001 and 2004, those were not successful. But the efforts taken by CJIe A.P. Shah in 2006 to recommend my name made a difference. He had a lot of respect and affection for me. Thanks to continuously pestering him, I was able to get some background information regarding my appointment. I intend to only record the summary of that here.
How did the Katju Collegium prepare the list of names to be recommended as judges in the High Court?
He told me that he was impressed by my legal knowledge and how I argued the many cases in front of him and that he desired to recommend my name for the judge’s post. But his two Collegium members first opposed it on the ground that I was a Brahmin. When they learned that I was not, they objected that my wife was Brahmin. When CJ Shah questioned how that could be relevant, they objected that I was a member of the Communist Party. CJ Shah again clarified to them that I was expelled by the Communist Party eighteen years ago. Then, one Collegium member objected that I disrespectfully talked back to judges, to which CJ Shah disagreed, opining that I treated judges with utmost respect. With this barrage of objections resolved, the Collegium finally agreed to recommend my name.
One thing became clear from these details.
Most often the Chief Justice who recommends the names as per the Collegium system will be from outside the State. But the two other members of the collegium, who are senior judges from the same State, have their own likes and dislikes. Even if these three unanimously recommend the names, the President’s warrant of appointment is issued only after getting the State Government’s view, Intelligence Bureau report, Union Government’s decision and the recommendation of the Supreme Court collegium. Details of the person’s caste/religion play a major role in the appointment beyond the experience of the person concerned, his or her income, cases that he or she has argued, and details of judgements published in law journals. This is the tragic, rather unfair truth.
The reason I have recorded in detail about my appointment is to register the flaws of the collegium system and to highlight how overwhelmingly subjective discretion is at play. If the full telling of the egregious story of my appointment sparks a conversation on why we need to rethink how we appoint our judges, I would be happy.
Most often the Chief Justice who recommends the names as per the Collegium system will be from outside the State.
Collegium system of appointment is anti-democratic and with all its average human frailties.
In March 2013, I retired after serving as a judge for 6 years and 7 months. After my retirement, I was involved in the production of the film, ‘Jai Bhim’, based on a case argued by me in 1993 before the High Court. When the scene for the courtroom was being set up in the studio,, I requested the art director to exhibit two huge portraits of Justice V R Krishna Iyer and T. Sathiadev to be hung in the backdrop of the court hall. For me, it was a small way to due respect to them, and all that they had done for me.
In the many years since my retirement, little has changed in the arbitrary, opaque legacy of the Collegium system. By the very nature of the biases and arbitrariness it fosters, it has continued to remain brittle to executive deference. No doubt, to imagine a stronger future for our judiciary, it is important that we record the stories of all those who bluntly faced its betrayals.