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Dear Supreme Court, Indians mostly clueless about what goes behind the scene in judiciary

CJI SA Bobde has persisted with the opaque system that his predecessor Justice Ranjan Gogoi-led collegium of Supreme Court had initiated.

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India’s Supreme Court has regressed on its own transparency obligations of late, but when it comes to political parties, it wants the highest standard. On 13 February, a Constitution Bench of the Supreme Court issued six directions to India’s political parties, chief among which was to disclose reasons for fielding candidates with pending criminal cases in elections.

There is no doubt this judgment, which also asks political parties to make public the reasons why they couldn’t find “other individuals without criminal antecedents” could go a long way in cleansing India’s electoral politics.

But while the Supreme Court has occasionally gone out of its way to show the mirror to others, it has fallen short of introducing transparency in its own functioning?

Why doesn’t the public have the right to know how our judges are appointed? Will we ever know how a relative of a sitting or retired judge is found more qualified – despite failing to fulfil the relevant criteria?

Shouldn’t the public be told why a judge is first denied chief justiceship of a high court on clearly specious grounds but is later given the job?

Why is there a mystery over how the system of making recommendations for appointments was watered down?

Also read: Indian courts speak of ‘national interest’ but they order often in Modi govt’s interest

Supreme Court must walk the talk

Why is there no explanation for its senior-most judges overturning a decision that gave some amount of transparency in the way India’s top constitutional court functioned?

From 3 October 2017, the Supreme Court collegium, comprising then-CJI Dipak Misra and Justices Jasti Chelameswar and Ranjan Gogoi, had put in place the practice of placing a summary of its recommendations for appointments to the Supreme Court and the high courts on its website. The summary gave brief explanations about the names recommended, rejected and cleared. The names of the members of the collegium appeared at the end of each summary.

While many felt the move was short of what had been indicated when the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act, it was a beginning nevertheless.

Two years later, the system was quietly discarded, without any explanation. Now, the only information being put up on the website is a list of names that the collegium clears. There is nothing to say if other names, recommended by a high court collegium, for example, were also considered and rejected.

Also read: Not just govt, judiciary also to blame for mounting judge vacancies in high courts

CJIs in the lead

The Chief Justice of India (CJI) under whose watch the system was junked was none other than Justice Ranjan Gogoi, who was part of the historic press conference on 18 January 2018 where there was a focussed attack on then-CJI Dipak Misra for taking decisions arbitrarily. But when he himself was in the top chair, Justice Gogoi had no qualms in doing the same, in fact even worse. That Gogoi was also part of the five-judge collegium that had resolved to make such deliberations public makes the whole affair more intriguing.

Current CJI S.A. Bobde, who was part of the Gogoi-led collegium that stopped the practice, has persisted with the opaque system. Nobody knows if a formal decision was ever taken to disregard the system.

Interestingly, the decision to junk the earlier system was taken after an uproar over the unceremonious and arbitrary transfer of then Madras High Court Chief Justice V.K. Tahilramani to Meghalaya High Court.

After Justice Tahilramani decided to resign rather than suffer the indignity, the Supreme Court put out a statement signed by the Secretary General – on whose orders, the statement didn’t say – defending the transfer as having been made “for cogent reasons after complying with the required procedure in the interest of better administration of justice”.

But it is the next line in the statement that makes one worry about the institution. “Though it would not be in the interest of the institution to disclose the reasons for transfer, if found necessary, the Collegium will have no hesitation in disclosing the same,” it read.

Soon after, the media reported that CJI Gogoi had allowed the Central Bureau of Investigation (CBI) to initiate action “in accordance with the law” against the now-retired Justice Tahilramani over adverse intelligence reports related to her property transactions.

Who allowed the CBI to probe a sitting high court chief justice? Or did the CBI act on its own? Over three months later, there is still no clarity if the CBI is actually conducting an inquiry?

Also read: SC on criminal candidates: Should it be questioning political parties on their selection?

Need transparency over recusals

Since the Supreme Court wants others to be more transparent, what about a measure of transparency over recusals?

Last week, Justice Mohan M. Shantanagoudar recused himself from hearing a petition filed by Sara Abdullah-Pilot, sister of former Jammu and Kashmir Chief Minister Omar Abdullah, against the Narendra Modi government’s move to charge him under the Public Safety Act.

It’s time the Supreme Court comes out with clear rules on matters like recusals that go to the very heart of independence of our judicial system.

The author is a senior journalist. Views are personal.

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  1. Can we upload supreme court or high court picture in our website ? Do we need any prior permission ? Is there any restriction regarding the same ?

  2. How does the selection process ensure that Congress and naxal sympathizers, biased against a particular religion and soft towards left anarchism have not been injected into the selection pool over decades?

  3. In democracies parliament represented by elected members must be supreme but in India Supreme Court has made itself Supreme. A bench of 7 judges can undo any law made by the parliament. Not only this SC sets rules for itself and its functioning. It’s because divisions in parliament are not restricted to parliament whose functioning is politicised to the extent of enmity. Britishers could rule India because Indians were divided and remain divided even today. SC has used this division in parliament to behave like British rulers had behaved. SC has become unaccountable beast.

  4. Dear writer, do your home work properly. Collegium system was not started by Ranjan gogoi or Bobde. It is there since 1995. Read supreme court’s judgment known as Second and Third Judges Transfer cases. Government’s attempt amend the Constitution so as to form National Judicial appointments Commission was struck down by the Supreme Court. Collegium system has given us wonderful judges like KG Balakrishnan, CS Karnan, PD Dhinakaran and scores of similar persons. You can help by building public opinion against collegium system which is opaque.

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