Open up the Supreme Court

Context:

  • Almost 10 years ago, on September 2, 2009, the High Court of Delhi handed down a landmark judgment dealing with the fledgling Right to Information (RTI) Act.
  • It held that the Office of the Chief Justice of India (CJI) was a “public authority”, and therefore, subject to the provisions of the Act.

Previous Review:

  • on September 2, 2009, the High Court of Delhi handed down a landmark judgment dealing with the fledgling Right to Information (RTI) Act.
  • It held that the Office of the Chief Justice of India (CJI) was a “public authority”, and therefore, subject to the provisions of the Act.
  • Information held by the CJI — including, in the context of the case, information about judges’ assets — could be requested by the public through an RTI application.
  • In ringing words, Justice Ravindra Bhat declared that the RTI was a “powerful beacon, which illuminates unlit corners of state activity, and those of public authorities which impact citizens’ daily lives, to which they previously had no access”.
  • The Supreme Court appealed against this judgment, and the case eventually wound its way to the Supreme Court, where a stay was granted, and matters remained in limbo for a few years.
  • Earlier in the month of April 2019, however, a five-judge Bench of the court finally heard the case on merits, and reserved judgment.
  • By this time, the issues under consideration involved not only Justice Bhat’s ruling on the status of the Chief Justice as a public authority and the disclosure of judges’ assets, but also the question of whether the correspondence of the Collegium (the body of judges that selects and makes appointments to the higher judiciary) was subject to the RTI.

Appointment of judges – collegium system:

  • The Supreme Court Collegium is the panel of judges vested with the responsibility of appointments and elevations of Chief Justices and judges of the Supreme Court and high courts of the country.
  • The Collegium for the appointment of Judges of Supreme Court is headed by the Chief Justice of India and comprises of the four other senior-most judge of the Supreme Court. 
  • The decisions of the collegium are made through voting and the majority view prevails in case of difference of opinion.

Collegium system:

  • Over the course of the three cases, the principle of judicial independence evolved. The judicial independence ensures non-interference of any branch of the state inclusive of the executive and the legislature in the judges’ appointments or transfer.
  • The collegium system was thus created.
  • This system has been used since the issuance of judgement in the Second Judges Case in 1993.

However, it is worth noting that the “Collegium System” has no mention in the Indian Constitution, originally or through successive amendments.

Criticism the Collegium Faced:

  • Through this time, however, the Collegium had come under increasing criticism.
  • A major point of critique was its opacity: it was increasingly being perceived that judicial appointments were too often made in an ad hoc and arbitrary manner.
  • Perhaps the most vivid example of this was when former Supreme Court Justice Markandey Katju admitted that, as the Chief Justice of the Allahabad High Court, he had refused to recommend a High Court lawyer for judgeship because that lawyer was in a live-in relationship without being married.
  • One may wonder what connection there is between a lawyer’s marital status and his ability to discharge judicial functions, but this was, at any rate, a stark example of what the critics had in mind.
  • Indeed, the Supreme Court’s own NJAC judgment acknowledged this critique, and vowed to evolve a system where concerns of transparency were addressed.
  • A small step towards this was made during Dipak Misra’s tenure as CJI, when the resolutions of the Collegium began to be published online.
  • It is in this context that we must examine the arguments of the Attorney-General of India, who represented the Supreme Court before the Constitution Bench.

Way forward:

  • The Collegium’s recent decisions to recommend a set of names for elevation, and then hastily backtrack on them without any publicly stated reasons, dealt a serious blow to its reputation for impartiality and independence.
  • The only way to salvage this is to open up the court.
  • A judiciary that is confident of itself and of its place in the democratic republic should not be worried about subjecting judicial appointments to public scrutiny.
  • The occasional discomfort that might come from the harsh public glare is more than outweighed by the cleansing value of transparency.

 

 

 

 

 

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