Abraham Thomas | New Delhi
The judiciary's claim of "zero tolerance" to corruption went for a toss with the recent promotion of an additional judge accused of gross judicial misconduct. Involved in the controversial move is the highest court of the land that bypassed its own collegium in the process.
An additional judge of the High Court, rejected three times by the Supreme Court collegium for appointment as permanent judge, makes it to the coveted post on the fourth try. He is made permanent by the Chief Justice of India who is privy to his adverse track record. Later, when the apex court gets an opportunity to reconsider the appointment, it simply endorses the Chief Justice of India's controversial decision, though it, too, is fully in the know of the judge's blemishes.
The promotion of Additional Judge Ashok Kumar as a permanent judge of the Madras High Court has exposed the manner in which judges, themselves, bypassed their own collegium in elevating him. It has also provided Justice Kumar a more secure foothold. Incidentally, Justice Kumar had continued as additional judge through extension for two years, as he was denied permanency due to the charges against him.
Commenting on the episode, a shocked and agitated former Chief Justice of India, JS Verma, told The Pioneer that the elevation from an additional judge to a permanent judge drastically altered the level of judicial control over his functioning. "An additional judge can be robbed of his judgeship by being refused an extension if there is enough material to indicate his unsuitability, coupled with the opinion of the collegium. On the other hand, a permanent judge can be removed only through a time-consuming and intricate process involving the Parliament," Verma said.
When the Chief Justice of India's decision in February 2007 to elevate Justice Kumar came before the apex court, the two judges, who heard a petition moved by senior advocate and former Law Minister Shanti Bhushan challenging the appointment, endorsed the Chief Justice of India on the ground that the court could not "put the clock back" and reverse Justice Kumar's appointment, who was due to retire in July 2009.
Admitting to Justice Kumar's controversial record, the court wondered why he continued to get extensions all the while. The Bench even went to the extent of casting doubts of possible governmental interference.
The Bench of Justices Arijit Pasayat and MK Sharma noted, "On 29 April, 2005, the collegium including then Chief Justice of India was of the view that Justice Kumar cannot be recommended along with another judge for confirmation as permanent judge... the then Chief Justice of India should have stuck to the view expressed by the collegium and should not have been swayed by the views of the Government to recommend extension of the term of Justice Kumar for one year, as it amounts to surrender of primacy by a jugglery of words."
The Bench further observed, "A person who is not suitable for appointment as a permanent judge on the ground of unsuitability due to adverse factors on account of mental and physical capacity, adverse materials relating to character and integrity and other relevant matters which are so paramount and sacrosanct for the functioning of a judge should not be continued as an additional judge."
The judiciary, already facing flak from the Government for being too "secretive" in making appointments, may find this judgment difficult to ignore, especially when it is to defend the continuation of the collegium system.
After a Parliamentary Standing Committee on Law and Justice recommended an end to the collegium system, the Law Commission of India, in its 214th report, has suggested to the Government to institutionalise the process of collegium appointments by restoring the primacy of Chief Justice of India and the power of the executive in matter of appointments as envisaged by the Constitution. The collegium system owes its existence to a 1993 Supreme Court decision in SC Advocates-on-Record Association versus Union of India.
As an alternative, it recommended the Government to seek a reconsideration of past judgments of Supreme Court on the question of consultation process within the collegium.