How is a judge appointed in the High Court or elevated to the Supreme Court, how is a judge appointed as the Chief Justice of a High Court and how and when is a judge transferred from one high Court to another high court? The simple answer is, the public does not know. The reason has been the Supreme Court’s general attitude towards Right to Information, despite its judgments declaring how vital the public’s right to know is for a democracy, how sunlight is the best disinfectant and that the public has a right to know how its public institutions with public functionaries are functioning.

The decision of the Supreme Court collegium to bring reasons for its recommendation or rejection concerning 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 in public domain was indubitably a welcome departure from the deep-rooted culture of secrecy surrounding judicial appointments.

But a letter written by Justices Kurian Joseph and Madan Lokur to the Chief Justice of India asking for further deliberations on the matter have once again eclipsed the first transparency move by collegium. Both these judges contend that there is a need to value the rights of privacy, confidentiality and dignity of potential appointees which might be affected by the lucid attempt. The argument is based on analogy where students failed in the exams but didn’t want it to be public knowledge as to how many subjects they failed and what their percentage of marks is. It may breach right to privacy, dignity and confidentiality.

Secrecy Breeds Corruption

But can we apply this analogy to the performance of public officials? Certainly not. A public official cannot be allowed to hide his inability, inefficiency or malfunction in the guise of privacy and dignity. If secrecy is permitted in the working of government and it is kept away from public scrutiny, it would tend to encourage oppression, corruption and abuse of authority. It would all be shrouded in the veil of secrecy without any public accountability.

The debate on openness in governance does not mean openness merely in the functioning of the executive arms of the state, but the same openness must portray the functioning of the judicial apparatus including judicial appointments and transfers. This was perhaps one of the prime reasons for hijacking the power of appointments and transfers in higher judiciary from executive to collegium.

Justice Bhagwati, with whom five judges agreed in the first judges transfer case (S. P. Gupta vs. Union of India) and which has not been overruled at this point, supported the concept of openness. While overruling the claim of privilege for non-disclosure of communications relating to appointments and transfers of judges, the court observed: “The citizens’ right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in different parts of the world.

Objective Parameters

The functioning of collegium has been condemned for not being transparent and objective, the reasons for which it was evolved. It failed to institutionalise the process and the parameters of appointment, elevation and transfer of judges. It has been about two years since the five-judge Constitution Bench, after striking down the government’s NJAC (National Judicial Appointments Commission) law, tasked the Centre (December 2015) to draft a fresh Memorandum of Procedure (MoP) with the objective of making judicial appointments transparent.

However, the Supreme Court and the government conjointly failed to develop objective standards (seniority, intelligence report on personal and professional integrity, commitment to pro-bono lawyering, number and quality of judgements, pending inquiries etc. to mention a few) carrying apposite weightages so that comparative merit is determined. Display of reasons for recommendations or rejection would not only display the performance of judges and ensure accountability but also place on the collegium the burden to be more objective and truthful.

Anxiety of Lawyers and Judges

Lawyers and Judges are anxious as exposing their names and the reasons for rejection for appointment or elevation may dent their personal and professional reputations. This anxiety seems legitimate because decision of collegium is final and cannot be challenged. What if recommendations or rejection are based on mala fide and irrelevant considerations? Judicial review was available against executive action if the consultation was illusory, with ulterior purpose, non-application of mind or the mala-fide exercise of power. Why is the same rule of law not applicable to the collegium?

The Supreme Court recently in Riju Prasad Sarma etc. vs. State of Assam & Ors (Civil Appeal No.3276-3278 of 2013) has laid down law that while acting in its judicial role, the judiciary cannot be considered as State under Article 12 of the Constitution, but when the court acts purely in administrative capacity, they may fall within the definition of the State for attracting writ jurisdiction.

In Prem Chand Garg v. Excise Commissioner, U.P. (1962) the Supreme Court has struck down  its own Rule 12 of Order XXXV of the Supreme Court Rules, which required the furnishing of security in a petition under Article 32, on the ground that it abridges right of constitutional remedy under Article 32. The work of collegium is entirely administrative and therefore it must ensure compliance with its own dictates. Developing objective performance index for lawyers and judges and making collegium’s recommendations/rejection subject to judicial review seem to be sine qua non to bring accountability and transparency failing which, it will continue to face credibility challenge.

(The writer is Associate Professor of Law at NLU Odisha and Deputy Registrar, Supreme Court of India. The views expressed are personal)