MAKING COLLEGIUM DECISIONS PUBLIC: A RESULT OF OWN CONSCIOUSNESS OR MOUNTING CRITICISM?
Giving a major boost to the accountability and transparency in the judicial appointments, the collegium has passed a landmark resolution announcing that 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. The details will be available as collegiums resolutions. The collegium led by Chief Justice Misra and four other senior most Supreme Court judges took the decision amidst the allegations that the collegium under political pressure is elevating incompetent judges to the higher judiciary. It is also being considered to be the most significant step taken by the collegium to steer clear of the criticism of opaqueness ever since the Supreme Court had struck down the National Judicial Appointments Commission as being unconstitutional.
The process of appointment and transfer of judges to the higher judiciary has never been free of controversies and historically is always seen as a tussle of power between the executive and the judiciary. The provisions regarding the appointment of judges to Supreme Court are mentioned in Article 124 of the Indian Constitution.
However, the word "consultation" in Article 124(2) has caused much confusion and no less controversy. The Supreme Court has given a different interpretation to the word "consultation". In the First Judges case (1982), the Court held that the CJI's recommendation to the President can be refused for "cogent reasons" thereby letting the executive retain its decisive role. But, in the Second Judges case (1993), the Court reversed its earlier ruling and primacy was accorded to the Chief Justice of India under the collegium system. Similarly, in the third judges case (1998) though being an opinion and not a ruling, the Court confirmed what was decided earlier. In the recent NJAC case also called Fourth Judges case (2015) by some, the government had tried to bring an active role of the executive and legislature in the process of appointment and transfer of judges to the higher judiciary but it was struck down by the Supreme Court as being unconstitutional.
Post NJAC ruling, the Supreme Court tried to mend the fences by suggesting a solution to the process in the form of Memorandum of Procedure (MoP) but nothing concrete has been achieved as of now. The huge number of vacancies for judges in various High Courts, the war of words between Justice Karnan and the Supreme Court, the refusal by Justice Chelameswar to attend the collegium meetings and resignation by Justice Jayant Patel of Karnataka High Court all point towards a bigger malice and thereby call for bringing up some judicial accountability in the process. Given this backdrop, the step is being seen in the right direction. It will not only bring much-needed transparency but it will also halt the ever-increasing political interference as it will make it harder for the government to reject recommendations given by the collegium without owing an explanation. Moreover, it will keep a check on the arbitrariness and favouritism by the collegium as alleged by critics while appointing judges.
However, the picture is not all rosy as it looks. The biggest concern is there is no guarantee that the collegium will keep up its decision in the future as it is a voluntary disclosure not an obligation under the law. Other concerns being the adverse effect on the reputation and public image of the rejected candidates, absence of more prudent parameters for judging the performance of a candidate and the lack of transparency during the actual process of appointment of judges. Therefore, there is a huge room for the improvement such as laying down the annual report about working of the collegium, a well-laid down set of parameters for assessing one's performance etc. just to name a few. But, the decision has to be lauded as the Lords have taken a huge leap in the otherwise gloomy climate and the process of bringing more transparency will keep on strengthening with time.
So it would be wise to say making transparent the behind-the-doors process of selecting judges is a very wonderful step of that will go a long way of making the people accountable who are otherwise accused of 'tyranny of the unelected' by some besides raising the unfathomable faith and confidence people have in the impeccable tendency of the judiciary to impart free, fair and speedy justice.
Name: Akshay Arya
College: Faculty of Law, University of Delhi
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