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Supreme Court is going back on promise of transparency, building case for Modi govt’s NJAC

The reforms Supreme Court had assured India two years ago are yet to be delivered. It seems to be a case of one step forward, two steps backward.

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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.

Also read: Law minister Ravi Shankar Prasad questions SC for retaining collegium system

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.

Also read: Justice Tahilramani’s resignation shows why Supreme Court collegium is a failed system

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.

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  1. Fine column by Shri Sanjay Hegde in The Telegraph, tracing out the mellowing of the mood and temper of the judiciary.

  2. India’s judiciary and judicial system is a bad joke nay it’s a tragedy. Heaven help those who knock on it’s doors. Like all other organs of the state, it exists only for itself.

  3. Starting with the days of Emergency, the supreme court has not covered itself with glory. It upheld the view a person does not even high have right of life during emergency in the infamous ADM Jabbalpur v. Shivkanth Shukla case. Gradually, the apex court has acquired political leanings, starting with Justice PN Bhagwathi’s time, who wrote letter to Indira Gandhi, in winning elections in 1980. In 1993, after the second and third judge’s transfer cases, taking advantage of weak coalition governments, it usurbed the power to appointment the judges. Perhaps, India is the only country in which the judges appoint themselves without the intervention of the Executive or the Parliament. During the last two decades, the Supreme Court has always gien priority to high profile cases, especially the politically tilted ones, than to dispose of the cases of ordinary litigants.

    The supreme court has one of the most corrupt registries in the country. Nothing can be got done there without shelling out thousands of rupees. I had applied for copies of case papers under RTI, though not a party to the case. My application was rejected by both CPIO and the first appellate authority on the basis of a Delhi HC judgment which held that a citizen should apply for copies of documents on judicial side under the Supreme Court Rules, 2013. When I applied under the SC rules, my application is kept pending without releasing the documents on the ground that Delhi HC judgment has been appealed against in the SC, heard and judgment is reserved. I am damned if I do, and damned if I dont. They are an obscurantist lot, who just don’t cooperate with the public.

  4. Having enormous power without accountability by SC judges is distortion of democracy. If government confronts the judiciary, the media takes the sid of judiciary. It’s time for media to take lead to correct this anomaly.

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