Towards transparency: 

Towards transparency: 

CONTEXT:  

In a move towards transparency in the elevation, confirmation and transfer of judges, the Supreme Court has begun to upload the decisions of the collegium, and the reasoning behind them, at the time that its recommendations are forwarded to the government.

INTRODUCTION:

• The collegium, comprising the Chief Justice of India and four senior judges, has said it would indicate the reasons behind decisions on the initial appointment of candidates to High Court benches, their confirmation as permanent judges and elevation as High Court Chief Justices and to the Supreme Court, and transfer of judges and Chief Justices from one High Court to another.
• The Supreme Court collegium’s decision to disclose the reasons for its recommendations marks a historic and welcome departure from the entrenched culture of secrecy surrounding judicial appointments.
• In a 2015 judgment rejecting the proposed National Judicial Appointments Commission, the Supreme Court recommended improving the transparency of the collegium system.

WHY THE DECISION WAS TAKEN?

• There will now be some material available in the public domain to indicate why additional judges are confirmed and why judges are transferred or elevated.
• It is important to strike the right balance between full disclosure and opaqueness.
• It is to be hoped that this balancing of transparency and confidentiality will augur well for the judiciary.

WHAT IS THE COLLEGIUM SYSTEM?

• It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.
• The Supreme Court collegium is headed by the Chief Justice of India and comprises four other seniormost judges of the court.
• A High Court collegium is led by its Chief Justice and four other seniormost judges of that court.
• Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium.
• Judges of the higher judiciary are appointed only through the collegium system — and the government has a role only after names have been decided by the collegium.
• The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
• It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

What does the Constitution say regarding the appointments of judges?

• Judges of the Supreme Court and High Courts are appointed by the President under Articles 124(2) and 217 of the Constitution.
• The President is required to hold consultations with such of the judges of the Supreme Court and of the High Courts as he may deem necessary.

Article 124(2) says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”

Article 217: “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.”

Critics argue that the system is non-transparent, since it does not involve any official mechanism or secretariat.

Why has the collegium system been criticised?

• It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure.
• There is no public knowledge of how and when a collegium meets, and how it takes its decisions.

What efforts have been made to address these concerns?

• The NDA government has tried twice, unsuccessfully both times, to replace the collegium system with a National Judicial Appointments Commission (NJAC).
• The BJP-led government of 1998-2003 had appointed the Justice M N Venkatachaliah Commission to opine whether there was need to change the collegium system. The Commission favoured change, and prescribed an NJAC consisting of the CJI and two seniormost judges, the Law Minister, and an eminent person from the public, to be chosen by the President in consultation with the CJI.

How are appointments being made now?

• The collegium has been making recommendations for appointments and transfer of judges.
• However, the 2015 ruling, had also paved the way for a new Memorandum of Procedure (MoP) to guide future appointments so that concerns regarding lack of eligibility criteria and transparency could be redressed.
• The Bench had asked the government to draft a new MoP after consultation with the CJI. But more than a year later, the MoP is still to be finalised owing to lack of consensus on several fronts between the judiciary and the government.

Conclusion:

The mammoth task of filling these vacancies would be better served if a revised Memorandum of Procedure for appointments is agreed upon soon. A screening system, along with a permanent secretariat for the collegium, would be ideal for the task. The introduction of transparency should be backed by a continuous process of addressing perceived shortcomings. The present disclosure norm is a commendable beginning.