Informational rights key

SUPREME COURT COLLEGIUM

It is a common misconception, among many, that the selection process of judges is a sacred revelation only known to the high priests of Supreme Court. This topic acquires contemporary relevance considering the fact that presently the SC is considering the applicability of Right to Information to collegium records.

As a starting point of the debate, this article does not patronise the merits or address the demerits normatively inherent in the collegium system, rather I am only concerned with the narrow issue of informational rights to collegium records. The Collegium is relatively the best choice available. Coming to the concept of independence of the judiciary, we are all aware of the rule of Indira Gandhi and her extra-constitutional attack on the judiciary. It would be a disservice to those judges, who were ignored in favour of more loyalist judges, to not be mentioned herein.

Justice M Shelat, Justice A N Grover, Justice K S Hedge and Justice H R Khanna, were superseded in favour of Justice A N Ray and Justice M H Beg, as an egregious attempt by the then government to usurp the judicial functioning. This event should act as a caveat in reminding us that, if such things can be done once then it can be undertaken again.

We need to understand that since 1980s, even larger conspiracy to denude independence of judiciary is in play. This is apparent from various examples such as non-consolidation of tribunals under the Ministry of Law and Judiciary in spite of L Chandrakumar judgement, suppression of many judges in appointment to the post of Chief Justice of India, repeated interference in the appointment and service rules of tribunal members, reduced budgetary expenditure on judiciary, delay in confirmation of appointments, continued media trials and attempts to portray judiciary in negative light by certain media etc.

This large conspiracy falls in line with the fact that there is a possibility of utilisation of the disclosures made from the collegium records to denude independence of judiciary.

Now let us understand the procedure for selection of judges as per the Third Judges Case and the Memorandum of Procedure (MoP). The collegium judges get a brief on the attributes of the candidate including his bio-data etc. They seek further input inter alia, from a relevant sitting senior-most SC judge from the candidate’s state.

An additional stage of personal interview with the CJI is usually conducted wherein his competence is assessed. Based on the available material on record, the collegium decides on the basis of a simple majority. As per Rule 3.4 of the MoP, the opinion of all the individual decision maker should be in the written format. Such opinion is available as part of the record wherein other decision-makers are free to reason, object, concur or accede.

The procedure envisaged under MoP mandates that every decision holder puts forth his reasonable response freely and frankly. The MoP assures that the discussion stays within the class/group of decision makers. The procedure envisaged is based on acquiring knowledge from various sources available to the decision maker.

The fact that the candidates can challenge their non-selection before the court itself necessitates that an opportunity for the candidate will be provided for him/her to explain any adverse remarks.

In this background, we must understand that the decision for selection of a judge for the constitutional court is multifaceted and the evaluation necessarily includes preference of policy, integrity, honesty, subject specialisation, representation of minorities and diversity in class, race and gender etc. Such evaluation, by necessary implication, cannot be subjected matter of discussion in the public domain.

Once a decision is taken by the CJI to forward the record to the government, all the relevant materials are compiled and forwarded to the Minister of Law, Justice and Company Affair.

When the record is transferred to the government, it takes input from the Intelligence Bureau (IB), chief minister of the state concerned etc, and the complied record is put up before the concerned minister and thereafter before the prime minister for his advice to the President of India. If the proposal is sent back by the government with adverse remarks, the SC will respond and reply to such adverse remarks.

The last step in the process is that, if the government is satisfied with such recommendation, they issue the requisite warrant of appointment in the name of the President. These procedural safeguards, placed within the collegium system, are sufficient enough to address any concerns of arbitrary appointments. In this light, the informational right to collegium does not provide any utility for the public in this case instant.

Viewed differently, judiciary is presently reeling under dearth of talent. There is no dispute about the fact that most successful young talents in the Bar do not consider the prospect of career within the Bench as lucrative.

Competence factors

The prospect of public disclosure of ‘competence factors’ may further deter good candidates from applying for the Bench. Such a measure will definitely reduce the judicial integrity and quality in the process. In this light, concern of transparency should not be allowed to weigh upon the quality and functioning of the judiciary itself.

Presently reasoned Collegium Resolutions are available in the public domain. This recent effort to come out with the Collegium Resolutions sufficiently address the concern of accountability and transparency. The fact of the matter is that there may be a public benefit in the need to know reasons for selection. In any case, I do understand that recently there were issues raised concerning the possibility of non-inclusion of informal considerations in the Collegium Resolution.

In this context, a further structural change may be integrated wherein the public is notified in advance, the names of candidates selected for consideration well before the collegium meeting. We need to now patiently wait for the judgement of the SC which may settle this issue once and for all.

(The writer, a graduate student at University of Cambridge (UK), is an advocate)