Transparent collegium falls short

The Supreme Court’s decision to make public the proceedings of the court’s collegium, which takes decisions on judicial appointments, is welcome as it will make the process more credible and transparent. The collegium has already initiated the process by uploading on the court’s website the recommendations for appointment of six candidates to the Madras High Court and three to the Kerala High Court. The information contains details of the evaluation made by serving judges about the candidates, appraisals of the quality of their past work, and intelligence reports about their professional and personal conduct. This will give the public a fair idea about the judges being appointed in the higher courts.

More importantly, it will reduce the chances of the collegium taking arbitrary decisions. There is a view that personal favouritism has played a role in appointments in the past. There has also been criticism that the collegium has acted under external influence. By making the relevant information public, the collegium can fight that perception. Now that it has taken this step it is also the responsibility of the Chief Justice of India to make public the reasons for the collegium proposing the transfer of Justice Jayant Patel, which became controversial and triggered the present reform.

The decision falls short of the demand for audio and video recording of the proceedings. Though the reasons for the collegium’s decisions will be made public, the actual minutes of the deliberations will not be available. There should be more clarity on the criteria for the selection of candidates and how the names are considered in the first place. The collegium has been inconsistent about some criteria, such as age. The proposal to set up a secretariat which will collect data on prospective candidates and pass it on to the collegium may be considered in this context. It is also important to continue the process without failure. This is worth noting because all judges have not stuck to the 2012 decision to make voluntary disclosures of their assets on the court’s website.

Even as the decision is a step forward, it will not address all the concerns about the working of the collegium system. The issue is not just one of transparency but of accountability and more importantly, of the role of the executive in the selection of judges. In a democracy, the executive should have a key role in such selection. No other country has the system of judges themselves selecting judges. The proposal for the National Judicial Appointments Commission (NJAC), which the court struck down, is the best solution to the problems and concerns that have arisen from the working of the collegium system.