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Speaking at a book release function in the Capital on Monday, Justice Chelameswar, who along with CJI Dipak Misra and the three seniormost judges is part of the collegium that appoints judges to the SC, also said that proceedings of the body should be maintained.
” Assessment of performance of high court judges is hardly done. Generally, impressions go as assessment,” Justice Chelameswar said while releasing the book ‘Appointment of Judges to the Supreme Court: Transparency, Accountability and Independence’.
J ustice Chelameswar’s demand for recording of the collegium’s proceedings is in line with his dissenting order as member of the five-judge bench, which in October 2015 struck down the National Judicial Appointments Commission Act. The NJAC, which couldn’t see the light of day, was supposed to end the collegium’s monopoly in appointment of judges to the SC and HCs.
Justice Chelameswar said some assessment ought to be made either by the collegium or by the state before the collegium recommends elevation of a judge. “That would eliminate most problems.”
The SC judge also questioned the transfer policy governing HC chief justices, saying it had resulted in a lopsided situation where as many as four judges of some HCs ended up serving as chief justices at the same time, something which made each of them eligible for elevation to the top court and skewed representation. He also noted that the political class had for the last 35 years been united in standing by the transfer scheme. Justice Chelameswar favoured a debate whether the system should treat ‘all-India’ seniority of a judge rather than his or her tenure as chief justice of an HC as the criterion for elevation.
H is observations are significant considering that the government has withheld the collegium’s recommendation elevating Uttarakhand HC Chief Justice K M Joseph despite the fact that he is the seniormost among chief justices of all HCs. The Centre has unofficially made it known that it is not in favour of Justice Joseph’s elevation as he is not the seniormost among serving judges of HCs.
The four judges who gave the majority verdict in October 2015 to strike down the NJAC Act had also acknowledged that all was not well with the collegium system.
In his dissent note, Justice Chelameswar recalled the infamous ADM Jabalpur case of 1976 when the SC had declared that right to life could be suspended during Emergency to observe, “In difficult times, when political branches cannot be counted upon, neither can the judiciary.”