On Friday, the Supreme Court collegium said it would upload its decisions on the appointment and transfer of judges of the apex court and High Courts on the Supreme Court’s website. These details would be available as collegium resolutions. This is the first significant step towards opening up a process heavily criticised for its opaqueness. The criticism had grown after the Supreme Court struck down the National Judicial Appointments Commission as unconstitutional in 2015.
The National Judicial Appointments Commission was proposed as a replacement for the collegium, which is made up of the chief justice of India and the top court’s four most senior judges. In contrast, the Commission included the chief justice of India, the Supreme Court’s two most senior judges, the law minister, and two “eminent persons” – who would be nominated by the chief justice, the prime minister and the leader of the Opposition in the Lok Sabha. The idea behind it was to make appointments to the higher judiciary more transparent. The collegium’s decisions were a closely-guarded secret and beyond public scrutiny. They were also kept out of the purview of the Right to Information Act.
The collegium’s decision on Friday to make its resolutions public comes 11 days after Justice Jayant Patel of the Karnataka High Court resigned in the wake of his transfer to the Allahabad High Court, which cost him the chance to become chief justice in the southern state. Senior lawyers such as Dushyant Dave have alleged that the reason Patel was sidelined was because he had ordered a Central Bureau of Investigation inquiry in the Ishrat Jahan case – in which the college student from Maharashtra was deemed a Lashkar-e-Taiba operative and shot dead by the Gujarat Police allegedly in a staged encounter in 2004. The names of several of its top officials cropping up in the investigation had embarrassed the Gujarat government, which was then led by Narendra Modi as chief minister.
The Supreme Court’s transparency move is also expected to lead to demands that the government make public its role in the judicial appointment process. The collegium sends its recommendations to the Centre, which can send them back for reconsideration. However, the collegium has the final say in the matter.
Transparency in judicial appointments
In 2015, a Constitution bench of the Supreme Court struck down the law that had created the National Judicial Appointments Commission. It held that the Commission, which would have given the Centre a greater say in judicial appointments, went against the separation of powers of the executive and the judiciary as framed in the Constitution.
However, while striking down the law, the court said it would ensure more transparency in the collegium’s functioning and even came forward to create a new memorandum of procedures for judicial appointments in consultation with the Centre. But for the next two years, the Supreme Court and the Centre were locked in a battle over the new procedures, with the former objecting to certain clauses in a draft proposal made in 2016.
Then last week, the Times of India reported that the collegium had decided to formulate norms for judicial appointments that would cut down arbitrariness. This proposal was reportedly made by Chief Justice of India Dipak Misra, who took charge on August 24.
Misra seems to have gone a step further. The notification put up on the Supreme Court website on Friday read:
“Decisions henceforth taken by the collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the government of India, with regard to the cases relating to initial elevation to the High Court bench, confirmation as permanent judge(s) of the High Court, elevation to the post of chief justice of High Court, transfer of High Court chief justices/judges and elevation to the Supreme Court, because on each occasion the material which is considered by the collegium is different.”
This means every time the collegium forwards the names of candidates to the government for appointment as judges, it would automatically place the names and the reasons for the recommendation before the public.
This is expected to counter allegations that the collegium has, under political pressure, cleared the names of individuals who turned out to be inefficient and sometimes corrupt. For instance, former judge K Chandru had questioned how retired Calcutta High Court judge CS Karnan – currently serving a six-month jail sentence for contempt of court – had made it through the collegium’s appointment process. Karnan had accused judges in the Supreme Court and High Courts of discriminating against him because he is Dalit and had summoned them to his “residential court”.
Making good on its decision on Friday, the collegium made public the reasons for the appointment of judges to the Kerala and Madras High Courts. The details included remarks made by the Judgements Committee, which analyses a candidate’s record and the quality of his or her judgements, and by the Intelligence Bureau on the integrity of the person. The resolution also talked about the non-elevation of Vasudevan V Nadathur, a judicial member of the Income Tax Appellate Tribunal. He was in the past recommended for elevation to the Bombay and Calcutta High Courts as well, but was rejected both times. This time, too, his name was dropped. The resolution said: “Record placed before us also shows that the proposal for his elevation initiated on a previous occasion by the collegium of the Bombay High Court was rejected by the Supreme Court collegium on August 1, 2013. A complaint pointing out this fact has also been received in the office of the chief justice of India.”
The collegium, however, was silent on the reason for Justice Jayant Patel’s transfer.
Centre’s role
With the Supreme Court deciding to place collegium resolutions in the public domain, pressure is likely to build on the Union government to make its side of the process transparent as well. Though the collegium’s recommendations are usually accepted without objection, there have been instances of the Centre turning down names for reasons such as adverse intelligence inputs.
In June 2014, it had said no to the proposed elevation of senior advocate Gopal Subramanium as a Supreme Court judge. Subramanium had later withdrawn his name, accusing the Centre of “dirt-digging”. As amicus curiae (friend of the court) in the Sohrabuddin Sheikh case – Sheikh was killed allegedly in a fake encounter by the Gujarat Police in 2005 – Subramanium had targeted the Gujarat government headed by Modi in 2007. This was largely considered the reason for the Centre rejecting his candidature.
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