Bar, Bench speak on Collegium’s Resolution to publish its decisions

In a significant move towards making the process of judicial appointments less opaque, the Supreme Court Collegium on Friday revealed that their decisions would be published on the Supreme Court website.

Bar & Bench spoke to a few members of the legal fraternity with a view to garnering their opinions on the development. And more often that not, the responses were positive.

Senior Advocate Harish Salve termed it as “the first step, and a significant one towards transparency.”

When asked whether the reasons for non-elevation of a candidate should be published, he said,

“That would be defamatory. Announcing the names of those who were not selected is a slur on them. Giving reasons would be worse. It is important to know why a person has been trusted to hold office.

If the names of those considered and rejected are made public, it will be an unmitigated disaster. The appointments to the High Court are from the subordinate courts. A rejection would result in criticism of the judge being made public. He would have to resign. Worse – those high court judges who are not elevated to Supreme Court. A litigant will be entitled to demand that his case not be heard by a judge found unfit for elevation.  

Secondly, the reasons for rejection would never bear scrutiny. They will undoubtedly be challenged – cannot fathom the consequences.”

He went on to add,

“I have been, and continue to be a critic of the Collegium system and continue to be a votary of the NJAC, if necessary, with a few tweaks. The ‘judges appoint judges’ was a good substitute for the executive appointing judges. It is a troubled and strained substitute for an institutional system. In that backdrop, a step that imparts transparency is a welcome step forward.”

Senior Advocate Raju Ramachandran commented,

“Good decision, long overdue. Kudos to Justice Chelameswar for his persistence.”

Senior Advocate KV Viswanathan opined,

“Sunlight is the best disinfectant. It is a welcome measure and should be applauded. This will result in appointment of candidates with merit. However, where a candidate is not elevated after being in the zone of consideration, the reasons should not be uploaded. Complaints against them would be untested and may cause irreparable damage to their reputation.

The Registrar may orally communicate the decision to the individual concerned. Further, uploading of reasons for not being elevated would deter meritorious candidates from placing their case for consideration, for fear that malicious rumours could cause grave harm to their reputation.”

The move has also been supported by ex-members of the Bench; former Supreme Court judges. Justice Gopala Gowda said,

“It is a good move, it [the deliberations] should be transparent. The decision to reveal all the material aspects must be left with the Collegium with reference to the recommendation that is made by the Collegium of the High Court.

If the Intelligence Bureau (IB) report says something contrary to the High Court Collegium, non-consideration of candidature must be supported by some material. There should not be mechanical acceptance of the IB report.”

The Campaign for Judicial Accountability and Reforms (CJAR) released a statement lauding the initiative of the Collegium.

“…CJAR is pleased to note the positive approach of the Collegium in placing the resolutions with reasons for elevation and transfers of judges to and between the High Courts, and appointment of judges to the Supreme Court…This is a first but necessary step towards both objectives and will go some distance in restoring the public’s confidence in the system, cutting at the roots of nepotistic and arbitrary judicial appointments.

While the collegium system was created to ensure independence of the judiciary under the Constitution, absence of transparency and accountability can defeat this purpose. For a robust and transparent appointment system, there is a need to go beyond this by putting out the names of proposed appointees on the Supreme Court website, to allow an opportunity for the people to provide relevant information on the proposed appointees. This will ensure appointment of only those candidates that are meritorious and of impeccable integrity…”

Senior Advocate Indira Jaising also welcomes the move, but remains adamant on the disclosure for the reasons behind Justice Jayant Patel’s transfer.

“Great news, but it must be backdated to the date this Collegium came into being with the election of Chief Justice [Dipak] Misra.

We need to know the reasons why Justice Jayant Patel was not appointed Chief Justice of the High Court or not elevated to the Supreme Court despite the fact that there is no judge from Gujarat in the Supreme Court.”

Senior counsel Dushyant Dave, who has always been a strong advocate for transparency in judicial appointments, feels that there is still something left to be desired.

“Supreme Court Collegium’s decision to make their decisions public is a step in the right direction and is a refreshing change in their approach hitherto. But, it falls short, much short of absolute transparency required in the whole process.

The Collegium would perhaps do a great service if it were to decide to put the whole deliberations out to the public. That way, there will be no doubt left in anyone’s mind; all avoidable speculation will stop. Their decisions are presumed to be bonafide and in public interest, but people must believe them to be so. Putting out full deliberations will go a long way.

The Collegium is not Imperium in imperio, but is subject to limitations under the Constitution and its own judgements on the subject. A careful reading of the 9 judge bench judgement in the SC AOR Association case of 1992 reveals that the Chief Justice and his colleagues in the Collegium are bound to act in a non-arbitrary and fair manner. It has laid down excellent guidelines including that the decision making process must be transparent, legitimate expectations of persons in the zone of consideration, selection of the best from amongst those available with outstanding abilities and character and keeping political considerations and influence out of such deliberations. Article 141 binds Supreme Court as well on administrative side.

Until the whole material is made available to the nation, how will people be able to judge the Judges for their actions? Why a good candidate has been kept out and why a non-deserving person has been promoted must be known. It is in larger interest of the institution that such disclosures are made. After all, its decisions are fait accompli for those directly affected as well as the entire Judiciary.

Who can challenge? Is challenge really available? I am not so sure. For example, in Justice Patel’s case, the nation is entitled to know why an outstanding and honest judge was being punished by not appointing him as the Chief Justice of Karnataka HC.

He was to be Chief Justice when certain transfers of Chief Justices across the country were mad. This was stalled by the government and the Collegium did not push it. Later, when his turn was due in October 2017 on the CJ retiring there, he was transferred. Now, as per the 1992 judgement, CJI needed to show exceptional reasons to justify it. But as per public knowledge, there were none. If the Collegium indeed possessed a genuine reason, it must disclose material. Patel J seems to have become victim of hearsay and self-serving allegations. it appears. So I must confess, today’s decision is cosmetic in a sense. Yet, I welcome it in the hope that more will follow.”

Another senior lawyer who did not wish to be named was of the opinion that it was a potentially dangerous move.

“I think a wrong precedent has been set. There are several reasons which can weigh with the Collegium for not elevating a particular lawyer, which better remain undisclosed so that he/she can at least practice after non-elevation.

Secondly, Collegium itself may chose to “record” very “valid” reasons for not elevating a person. Once resolution is in public domain, it will be capable of being criticized on the ground that the reasons given are not “sufficient”.”