It took the Supreme Court collegium just about two years to come to the conclusion that transparency isn’t a good thing when it comes to its own functioning. The Supreme Court this week put out a 32-word ‘statement’ informing the public about Chief Justice of India Ranjan Gogoi-led collegium’s decision to recommend elevation of two high court judges as chief justices. Nothing explains its refusal to not disclose the reasons behind the decision.
This completely goes against the unanimous resolution the five-judge collegium led by then-CJI Dipak Misra had passed on 3 October 2017. Current CJI Ranjan Gogoi was a signatory to the resolution.
Titled “Transparency in collegium system”, the resolution had stated: All “decisions henceforth taken by the collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India, with regard to the cases relating to 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, because on each occasion the material which is considered by the Collegium is different.”
More crucially, the collegium had said that the resolution was “passed to ensure transparency and yet maintain confidentiality in the collegium system”.
Many legal experts and retired judges weren’t too enthused with the resolution and said it wouldn’t ensure complete transparency in the manner in which judges are appointed or transferred by the collegium. But many others felt that it was at least a step towards opening up the opaque system of appointments controlled by the higher judiciary – where ‘link or connection’ (particularly with judges) rather than the candidate’s merit becomes the main criterion.
Building a case for NJAC
But the Supreme Court collegium’s recent decision shows that transparency is perhaps the last thing on its mind. Its 15 October decision – of elevating Rajasthan High Court Judge Mohammad Rafiq as the Chief Justice of Meghalaya High Court, and Punjab & Haryana High Court Judge Ravi Ranjan as the Chief Justice of Jharkhand High Court – is heavy on arbitrariness, without offering any reasons for the collegium’s change of heart.
Moreover, the collegium also misses the point that its decision goes against the constitutional bench’s judgment in the National Judicial Appointments Commission (NJAC) case.
By going against the standards and principles the collegium itself has set, the Supreme Court is merely strengthening the Narendra Modi government’s argument that the top court was wrong in striking down the NJAC Act, which would have allowed the central government a say in the appointment of judges to the Supreme Court.
The transparency and reforms that India was assured two years ago are yet to be delivered; in fact, it seems to be a case of one step forward, two steps backward.
Instead of moving towards total transparency, the Supreme Court collegium has adopted an opaque system where all that one can expect is a statement about the decision on the court’s website.
Collegium should revisit judgments
It may not be a bad idea for the members of the current collegium to re-read all the four judgments of the constitutional bench of the Supreme Court against the NJAC – along with the lone dissenting note by Justice Jasti Chelameswar – to understand why its latest move is uncalled for.
The collegium can start by reading this part of the judgment penned by Justice Jagdish Singh Khehar: “The sensitivity of selecting Judges is so enormous, and the consequences of making inappropriate appointments so dangerous, that if those involved in the process of selection and appointment of Judges to the higher judiciary make wrongful selections, it may well lead the nation into a chaos of sorts.”
While Justice Khehar was building a case against the NJAC, which was the government’s brainchild, these words hold equally true for the collegium as well.
The collegium could also see what Justice Kurian Joseph wrote on the issue of transparency in his concurring judgment in the NJAC case: “I agree with Chelameswar, J. that the present collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective.”
But it is Justice Chelameswar’s dissent that exposes the irrationality of the collegium’s latest move.
“It is a matter of public record that in the last 20 years, after the advent of the collegium system, number of recommendations made by the collegia of High Courts came to be rejected by the collegium of the Supreme Court. There are also cases where the collegium of this Court quickly retraced its steps having rejected the recommendations of a particular name made by the High Court collegium giving scope for a great deal of speculation as to the factors which must have weighed with the collegium to make such a quick volteface. Such decisions may be justified in some cases and may not in other cases. There is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country,” the judge wrote.
One can’t be faulted for thinking that Justice Chelameswar was making a plea to the members of the current collegium.
But, like several other bad decisions by the collegium, this one is also not expected to be reversed, at least not anytime soon.
The author is a senior journalist. Views are personal.