As children, we had heard the story about six wise men, each of whom thought he knew everything. Their boastful claims reached the king’s ears. He decided to take a public test. Keeping an elephant inside a tent, he blindfolded the wise men and asked them to enter the tent through six different doors.
They were allowed to touch and feel the elephant. They were to use their vast knowledge to tell the assembled people what they found inside the tent. We know the rest of the story which narrates the hilariously different objects the wise men imagined to be inside the tent.
There are six wise men in the judiciary and the government – the CJI, the next four senior judges of the Supreme Court and the law minister. They are all over 62 years in age, with nearly four decades of professional experience in the field of law.
The five judges are in the SC collegium and in the past have headed collegiums in high courts. They perform the unenviable task of selecting people with honesty, competence and rectitude for appointment as judges of constitutional courts.
The law minister too has first-hand experience about selection of judges. In addition, he as a lawyer is aware of the manner of selection of judges and the lacunae in the system. He also has vast experience in handling politically sensitive legal cases.
In December last year, a five-judge constitution bench headed by Justice J S Khehar, the next Chief Justice of India, took note of growing criticism of the opaqueness and arbitrary procedure adopted by the collegium and ordered redrafting of the Memorandum of Procedure (MoP) for selection of persons for appointment as judges. Almost a year has passed and the task has turned elephantine.
The five-judge constitution bench had its contribution in catalysing circumstances to make the task of finalising MoP an unenviable one. Earlier, the MoP was drafted by the government in consultation with the CJI. But the five-judge bench mandated that the government would redraft the MoP in consultation with the CJI, who had to convey the unanimous view of the collegium members. Unanimity has been eluding the six wise men for nearly a year. The draft MoP has been tossed between the executive and the judiciary a couple of times. But since the first week of August, it has been resting with the collegium.
The five senior-most judges of the SC, including the CJI, have on a daily basis judicially advised and coerced warring litigants to sit across table to discuss and narrow down their differences. These five wise men are discovering a dark truth about life in the last one year – what is probably easy to sermonise while presiding over benches and armed with constitutional powers is not so easy when they themselves sit together to find common ground on MoP.
One wise man among the five in the SC has serious differences with the collegium’s functional procedure. He says that views expressed by individual members, even if pertinent and worth considering, are brushed aside or summarily rejected by the majority. He stopped attending collegium meetings. Instead, he decided to pen down his views on the files after the four others discussed issues and recorded a decision. He says he is doing so to subject his recorded views to scrutiny if ever such an occasion arises.
We asked a majority of collegium members a simple question: Is it such a difficult task for six wise men to finalise transparent and uniform selection criteria for selection of judges to the SC and HCs? They said it was rather sad that such experienced people were finding it difficult to crystallise their views and reach common ground on this issue. How long will it take to finalise?
The law minister feels satisfied that despite non-finalisation of MoP, the government has appointed 120 judges to the SC and HCs, the second highest number since 1990. He says the government has sent the draft MoP to the collegium three and a half months ago. There is no response yet, he laments. The stagnancy on MoP does not augur well for the judiciary as an institution. More so, when nearly three crore cases are pending in the three-tier justice delivery system. What does not help is the vacancy of 500 judges in HCs and 5,000 in trial courts.
This grim scenario is threatening to envelop the justice delivery system that had long shed its swiftness. Instead of focusing on finding a solution to the stalemate, the CJI, the law minister and the attorney general were seen reminding each other about the constitutional ‘laxman rekha’ for every organ of governance.
Democracy and judiciary are critically dependent on the oxygen called people’s faith. Both must remove systemic blindfolds and work towards streamlining the judges’ appointment procedure. The public is keenly watching the six wise men’s experiments with an elephant called MoP.
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