Time has come to do away with the collegium system, says Justice AP Shah

“At no point in time is the Chief Justice considered or made to believe that they may be superior to other judges in the court,” Justice Ajit Prakash Shah, former Chief Justice of Delhi High Court said, delivering the BG Verghese Memorial Lecture in New Delhi recently.  

Shah was addressing those gathered to honour Uma Sudhir, NDTV (south) Executive Editor with the 2017 Chameli Devi Jain Award and was speaking of his experience as the Chief Justice of a high court.

While Sudhir received the award for sticking to the “core of public interest journalism” and a “consistent coverage” of those issues over an extended period of time, The New Indian Express’s Suraksha P received jury’s honourable mention for her story on leprosy patients being denied their pensions in the absence of Aadhaar. 

Representing the jury, Ritu Sarin, Executive Editor (News and Investigation) of The Indian Express, said: “Dedicated to issues of development for the past 28 years, Uma has shown the highest standards of journalism exhibiting strength in reporting, storytelling and impact.” Among other reasons for Sudhir’s nomination, Sarin said Sudhir’s coverage of issues was “well researched, deeply reported, visually strong and full of empathy.” She added: “In these challenging and tumultuous times for the media, among the cacophony of speed and superficial news, Uma remains a sane voice.” 

Addressing the audience, Sudhir spoke about her team’s role and support, cutbacks at NDTV, the state of the media, anecdotes from her life as a reporter and more. Importantly she said, “Reporters should not be reduced to bite collectors. It kills the journalism inside the journalist.” Sudhir was speaking about the larger media landscape where the role of reporters has been reduced to fetching bites to suit a larger pre-decided discussion. 

“We in the bureaus often say that we need some kind of cooperative federalism — where you are also heard,” she said in a spirit of jest. “It is not your headlines and my headline,” she added, conceding that the “view from Delhi is very different from that of a [regional] bureau”. 

Explaining the reasons for cooperative federalism, Sudhir told the audience: “When something that happens in Delhi becomes national news when it is not necessarily something that affects the entire country, then you start asking the question why is that so.” 

She added: “My worry is that journalists…get reduced to being bite collectors and some kind of stenographers in the modern version. Where they are just going to get bites to suit a larger narrative for a discussion that’s pre-decided.” 

“In this process, reporters have become foot soldiers…reducing the reporter to a person with a mic and two legs running around is very worrying. It kills the journalism inside a journalist,” Sudhir said, adding that this perhaps explains why there is a gap between what is happening in the country and the “stories we are able to tell”. Sudhir also clarified that this doesn’t happen at NDTV, but she was referring to a larger generic situation. She also thanked the broadcaster for not dictating “contours” to her stories.

Lastly, she also addressed the role of social media in present-day journalism. “Social media was meant to democratise the process, but is being used as a weapon to attack the same free media space,” Sudhir said. 

Following this Justice AP Shah took to the podium to deliver the annual BG Verghese memorial lecture. He spoke of his days working with Verghese, who was then serving as the chairperson for the Commonwealth Human Rights Initiative, before moving on to Supreme Court “proceedings that have lately besieged the institution”. 

Shah was referring to the press conference organised by the four senior-most judges of the top court on January 12 earlier this year. 

Shah not only addressed the criticism pointed at the four judges for making an “internal” matter public, he also spoke about the need for reforms and transparency in the judiciary, the threat to the independence of the judiciary as well as the need for the Chief Justice of India to assume a more consultative role. 

In making public the internal issues of the top court, “all four of the judges risked something,” Shah said. “Justice Gogoi, for example, has placed on the line his chances of succeeding Justice Dipak Misra as the Chief Justice of India.” 

This is so because “the incoming CJI is appointed on the recommendation of the outgoing CJI”, as per convention. 

“In equal measure, the other three, although they will retire well before the current CJI does, have risked criticism from their peers, and perhaps also getting isolated from the bar and bench after they retire,” Shah said as he explained why speculations of  the judges’ actions amounting to “gross impropriety” were wrong. 

He said, “Rather than being in breach of their code of conduct, they were perhaps displaying allegiance to the oath of office they took upon entering office.”

Shah also stated that the “immediate trigger for the press conference was the allocation of the case of a deceased judge of a special CBI court, Judge BH Loya, to a particular bench, in a manner “contrary to roster and convention”. Judge Loya was presiding over the Sohrabuddin Sheikh case and died of a heart attack in December 2014 in Nagpur. 

Speaking about the four judges, in the light of the Supreme Court roster being made public, Shah said without mincing words, “All four judges who made this public declaration have been kept out of all important matters, be it the Ayodhya case, the Aadhaar matter, or the land acquisition row.” He added, “While it is true that seniority is not the sole criterion, but seniority does matter.” 

The crux of the allegations made by the four senior-most judges — Justices Jasti Chelameshwar, Ranjan Gogoi, Madan Lokur and Kurian Joseph — was that court conventions of bench-strength and bench-composition, in the allocation of cases, were not being followed. In speaking of this, Shah emphasised upon the “notion of convention dictating judicial practice in matters of assignment” and discussed “best practices” followed by judiciaries in other Commonwealth countries.  Such practices were evolved to ensure “fairness, transparency and accountability”, in turn, strengthening of judicial institutions, Shah told the audience. 

Giving examples of cases where “transparency and fairness in managing the roster” were questioned, Shah spoke of three cases, including a letter written by the wife of former Arunachal Pradesh Chief Minister, Kalikho Pul, RP Luthra’s petition seeking finalisation of the Memorandum of Procedure for the appointment of judges and the Lucknow medical college bribery scam involving a former Odisha High Court judge. 

In saying this, Shah questioned the “unfettered” power of being “master of the roster”. He said, “The objective of the Chief Justice, in managing the roster, is to strike a balance between disposal of cases, and maintaining the integrity and independence of the institution…” adding, “What is to happen when a Chief Justice does not adhere to these principles? Does being “master of the roster” mean that such a person remains unaccountable and cannot be questioned?”

While speaking of the RP Luthra case, the former Chief Justice of the Delhi High Court also stated that appointment of judges to the Supreme Court will be a “crucial test of office for Chief Justice, it is this [Dipak Misra] one or the next.”

Shah also spoke about the need to introduce reforms in the Indian judicial system. “We need to introspect and reflect on what our own judicial system has evolved into,” he said, adding that “do not mistake all that I have said over this past hour or so as mere criticism” but instead look at it as an opportunity for reform. “The time has come to do away with the Collegium system, and relook at the opaque system that the judges have constructed for themselves. And most certainly, this is an opportunity to introduce reform in the allocation of cases,” Shah said adding, “The role played by the CJI as master of the roster should be a more consultative process than it is today.”