Memoranda for Submission to the Chief Ministers of the Two Telugu States.


Collegium vs NJAC

Dt:  24/1/23

Collegium  vs  NJAC

Dr T H Chowdary*


The Supreme Court’s stand  that its  Collegium   is infallible  and that the Collegium’s recommendations  as to who  should be  appointed  as Judges  appears to be  self-righteous  if not arrogance.  Are the five senior most judges  superior to  all the  rest  in the  Supreme Court in intelligence, integrity, competence and wisdom?   Why only  the five senior most should  constitute  the  Collegium ?  Why not  all the judges of the Supreme Court  together  ?   What lesson  does the public  draw   from the  conduct of  Chief Justice  A.N Ray  whom Indira Gandhi  elevated over  several  seniors and  who in gratitude attempted  to get the  Golaknath ( 1967)  and Keshavananda Bharati  (1973) judgements   of the Supreme Court over turned, but had  to dissolve  the Bench  he constituted  for the purpose thanks to the unassailable  and the legendary arguments of Nani Palkhiwala, one of India’s  greatest intellectuals  and defender of  swatantra .


2. The term, “ we the people “ in the Constitution  is applicable  far more to the Members of Parliament , elected by the hundreds of  millions  of Indian people  than to the  five senior most  judges  among more than a  score of others ?


3. To presume that only the five senior most  Judges are  omniscient to judge  about competence  of others is a claim to infallibility.


4. In the instant case ,  three persons  recommended  are hereditary , just like  among political  parties.  One is a gay  with a foreign wife. That the person pronounce himself   gay,  is no merit;   every one is  expected  to be truthful .  Government of India   has a rule that its foreign service officers shall have  a no objection letter from the  GOI  to have  a foreign spouse ( President Narayanan had a Burmese wife; he was directly inducted as an IFS Officer by Jawaharlal Nehru).   If a foreign spouse   for  an IFS Officer  shall be  specially  noted by government,  why should it  not be a matter  of notice in the case of  a judge of the  India’s  Supreme Court ?


5. Former Judge  U C Banerjee, whose son  is another person recommended by the   Collegium   gave a finding as per the wish of the notorious   ( jailed in fodder case)  Minister Laloo Prasad Yadav in the  matter of  burning of pilgrims  in a railway coach in Godhra in 2002.


6. The following opinion of  the illustrious  lawyer, Fali S Nariman  ( at page 387 in Chapter-16 of his autobiography , “ Before  Memory  Fades” ) regarding the  Collegium  affair ought to be given   due consideration .


“ I don’t see what is so special about the  First Five Judges of the Supreme Court.   They are only the first five in seniority of  appointment – not-necessarily in superiority of   wisdom or competence.  I see no reason why all the judges in the highest court should not be consulted  when proposal is made for appointment of an High Court judge ( or any eminent advocate) to do a judge of the Supreme Court .  I   suggest that the closed circuit network of  Five  Judges  (Collegium) should be  disbanded”.


(510 words)