Dealing with the Opaqueness of the Collegium

After the National Judicial Appointments Commission (NJAC) Act was struck down by the Supreme Court of India (SC), the collegium automatically returned as a replacement.[1] The appointment of Chief Justices and Judges both of the High Court and Supreme Court will be done according to the collegium system from now onwards.[2] The primacy of the Judiciary over the Executive in matters of appointment of Judges to the Higher Judiciary was upheld in this landmark Judgment. The other significant development was the building of a consensus regarding the many flaws in the collegium system.

“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. Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments.”[3] (Emphasis supplied)

Justice Kurian Joseph in Supreme Court Advocates-on-Record Assn case (2015)

The flaws in the collegium were always present, recognized or unrecognized. The problem mainly lies with the opaqueness of this system. The functioning is opaque to the extent that other Judges of the same Court do not have access to any files used during the collegium proceedings. The Proceedings of the collegium basically comprise of the exchanges and correspondences between the Constitutional Authorities, which have been given the power to appoint Judges of the Higher Judiciary.[4] The subjectivity involved in the process of appointment of Judges comes as another major criticism of the same. The belief in the fact that the opinions held by the Honourable Judges and other Constitutional Authorities for the appointees are bona fine and reasonable is the only way out of this “problem” of subjectivity. If what is expected from these authorities is also practiced in actuality, why not get the files and all related papers in the public domain after a certain process is complete. At a point of time, even the Supreme Court, in S.P. Gupta v. Union of India, had expressed the same.[5] To fix some of the imperfections of the collegium, the Constitutional Bench of the Supreme Court invited suggestions from all over the country regarding four aspects of the collegium viz. transparency, a secretariat, eligibility criteria for Judges and a complaint mechanism.[6]

Among the various suggestions, one of the prominent suggestions was to bring the collegium proceedings in public domain by getting it under the Right to Information Act, 2005 (RTI Act). This suggestion squarely falls in the ambit of making the collegium, an otherwise exclusive process, transparent. The same was suggested by a 2 member-committee formed by ASG Pinky Anand and Senior Advocate Arvind P. Datar in a report submitted to the Constitutional Bench on behalf of the Government.[7] One of the other suggestions that came as part of the activity of making the collegium more transparent was that the collegium proceedings should be video recorded, archived and broadcasted as is done in some other countries like the United States.[8]

Development of the Issue

Before the 2nd Judges case[9], the executive was allowed to do all the appointments in the Higher Judiciary in consultation (not necessarily concurrence) of the Chief Justice of India. The reason attributed to this was ‘accountability’ of the elected to the people of India.[10] The Executive is answerable to the Legislature, which in turn is directly answerable to the people of India. After the 2nd Judges case, the power of making appointments was given to the Chief Justice of India (or the collegium). The accountability of the Judiciary is as essential to the people of India as the independence of the Judiciary. But no provision for any sort of accountability or transparency was incorporated while establishing this new system.

The Right to Information Act came in 2005. One of the many RTI Applications that were filed with the Supreme Court asked to provide the files and the file notings exchanged between the Constitutional Authorities in the elevation of certain Judges superseding the seniority of certain others. The matter went up to the Central Information Commission (CIC) for 2nd appeal, where the order was given in favour of the applicant ordering the Supreme Court Registry to provide the sought information.[11] But the respondents got a stay from the High Court of Delhi.[12] Seeing a potent question of Law being involved in the case, it was referred to a Constitutional Bench back in 2010.[13] But the Bench has not been constituted yet. The Referral Bench has put the followings questions for consideration by the Constitutional Bench:

“1. Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary?

  1. Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision?
  2. Whether the information sought for is exempt under Section 8(i)(j) of the Right to Information Act?”[14]

Whether the Bench will uphold the CIC Order bringing the collegium under the ambit of the RTI Act or not, is impossible to be known at present. But enquiring into the possibilities is viable.

Personal Information

As laid down in the Memorandum of Procedure (MoP), all the consultations and correspondences between the Constitutional Authorities for the appointment and transfer of judges of the higher judiciary are supposed to be in writing.[15] The MoP is prepared by the Government and it lays down the exact procedure of appointment of Judges to the High Courts and the Supreme Court. The files of the proceedings are argued to be held by the CJI in his personal capacity. This leads to one of the questions referred to the Constitutional Bench that whether this information can be categorised as “personal information” or not.[16] But the CJI is a mere custodian of the same and such information cannot be said to be held in his personal capacity for a simple reason that the same is available for perusal and inspection to every succeeding Chief Justice of India. Therefore the same is held by the CJI in his official capacity, not his personal capacity. The same reasoning was employed and upheld by the High Court of Delhi in the case that involved declaration of assets of the Judges.[17] The personal assets of a Judge may be considered to be the personal information but the discussions related to their elevation cannot be considered to be third party information. The discussions involved in the execution of a public function cannot be considered to be confidential.[18]

Very recently the Supreme Court issued guidelines for the Government to redraft the MoP.[19] This was in light of the various suggestions that reached the Supreme Court suggesting improvements in the working of the collegium. The Government here has the power to incorporate the suggestions it gave to the Constitutional Bench like getting the collegium under the ambit of the RTI Act. But this redrafting of the procedure cannot address the issue of opaqueness of the collegium to the extent of getting it under the ambit of the RTI because the matter is under consideration and any change in that direction faces the patent risk of getting struck down until decided upon.

Overriding Public Interest

In arguendo, even if it is considered to be the personal information, the public interest overrides. Public interest can be seen from two angles. First, something can be said to be in interest of the public if it affects people at large. Interpretations of Laws and Judgments delivered by every Judge holds authority for decades, often even stay unchallenged for a century. It cannot be stressed enough how much an appointment of a Judge affects the public. By the second angle, public interest is something that can be seen in contrast to private interest. Keeping the appointment process to be as exclusive as it is now may be seen to be in the private interest of the few in the Judiciary, but bringing the same in public domain is upholding the fundamental right of the citizens of the country. It has been held by the SC in a catena of cases that the Right to Information does not emanate from the RTI Act, its source lies in Article 19 (1) (a).[20] Its larger purpose is to facilitate democracy by ensuring that citizens have the information required to participate meaningfully in the democratic process and to help the governors be accountable to the governed.[21] It is also said that the RTI lies in Article 14 as much as it lies in Article 19 (1) (a).[22]  Information of public functions is necessary for ensuring that there is no discrimination and the dignity of life is upheld. Hence,

“The Right to Information in embedded in Articles 14, 19 (1) (a) and 21 of the Constitution of India.”[23]

Justice Bhagwati in the S.P. Gupta case had made certain observations which still hold true (and still are heavily relied on) even though the case was overruled by the 2nd Judges case. To the argument that the views of the Constitutional Authorities if disclosed might be publicly debated and made subject to uninformed criticism which might undermine the prestige and dignity of the judicial system and consequently shake the confidence of the people in the Judiciary, the Court said that as long as the views held by anyone are bona fide, there should be no worry regarding their disclosure. The Court also said that if two judges can reach contrary conclusions while interpreting the same law or while deciding a case, why would they feel embarrassed having contradictory opinions about a Judge. The Court stated that it is expected that the Judges will always give their honest and fearless opinion in every situation.

As far as the argument that such files are marked “confidential” therefore cannot be provided under the RTI Act is concerned, the RTI Act would override any such demarcation if the general public interest in disclosure of the information overrides the public (or private) interest in maintaining confidentiality.[24] The task before the Constitutional Bench is to innocuously balance the two interests.

Maintaining the Fiduciary Relationship (that doesn’t exist)

That the CJI is a distinct Public Authority from the Supreme Court has been established.[25] The argument that says that the CJI holds all the information in a ‘fiduciary relationship’ with the other members of the collegium and others who are referred to in the process does not hold water now. The argument is precisely that if the CJI is asked to reveal the information, it will breach the fiduciary duty of the CJI. The Supreme Court, very recently (on December 16, 2015), while deciding the issue that whether the RBI is in a fiduciary relationship with the banks or not employed certain reasoning which might help us getting an insight into the issue at hand. The definition of fiduciary relationship used by the court was “a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the fiduciary relationship.”[26] It is the CJI’s duty to uphold the interest of the public at large and not the interest of the other Judges. The same line of argument, that the RBI does not/ is not supposed to work in the interest of the financial institutions, was used to uphold that RBI does not owe any fiduciary duty to the banks and consequently comes under the ambit of the RTI Act.[27] Moreover in our case, it is clear that the CJI cannot be said to have a superior knowledge, or be better trained, to aid or control the affairs and conduct of the other Judges.[28] The Supreme Court Judges hold independent office, and there is no hierarchy in place that may put the CJI on a different plane than the other Judges.[29] Henceforth, it has become clear which way this argument may fall unless the Division Bench order (in the RBI Case) is overruled to suit other interests.

Conclusion

Keeping in mind the above, the Supreme Country must, as always, come out as the sole saviour of the Country and its citizens while balancing between accountability and its independence. The judgment would be a huge one. It will go a long way to decide and direct the relationship between the Judiciary and the little man of this country (for whom the Judiciary actually exists).

I would end this article by quoting excerpts of an interview (2008) of Justice J.S. Verma, the majority Judgment author of the truly landmark 2nd Judges case.[30] The subject of the interview revolved around the 2nd Judges case and its implications.

“Whatever the system, it is the honesty of purpose of the persons who are in charge of working that system that matters. Honest errors everyone makes. But then if something stares you in the eye, and then you do it, it weakens the system. And, therefore, I am for transparency. There is no reason why, after an appointment is made, the entire correspondence cannot be made public. The public must know the reason why a collegium recommended someone and persisted.”

“I recorded details of every consultation. I wish all my correspondence is made public. After the appointment, why should it be secret? If there is a good reason to appoint the Judges, then at least the doubts people cast on them even now will not be there. And if there is a good reason why they should not have been appointed, then it would expose the persons who were responsible for their appointment.”

*Kushal Garg, IInd Year Student, B.A. LL.B. (HONS.), NALSAR University of Law, Hyderabad. He can contacted at gargkushal94@gmail. com. He owes credits for the idea of the Article to Mr. Rishabh Sancheti, Advocate, Supreme Court of India.

[1] Supreme Court Advocates-on-Record Assn. v. Union of India, 2015 SCC OnLine SC 964 .

[2] <http://blog.scconline.com/post/2015/12/24/judicial-appointments-at-various-courts/>.

[3] Supreme Court Advocates-on-Record Assn. v. Union of India, 2015 SCC OnLine SC 964.

[4] The Constitutional Authorities empowered to act in the process of appointment of the Judges are the CJI with the four seniormost Judges of the Supreme Court in case of the Supreme Court.

[5] Para 84, 1981 Supp SCC 87.

[6] Supreme Court Advocates-on-Record Assn. v. Union of India, 2015 SCC OnLine SC 964.

[7] Supreme Court Advocates-on-Record Assn. v. Union of India, 2015 SCC OnLine SC 1143.

[8] <http://thewire.in/2015/11/05/one-way-to-fix-the-collegium-is-to-televise-its-proceedings-14863/>.

[9] Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441.

[10] Judges and Judicial Accountability, Cyrus Das & K. Chandra (eds.).

[11] Subhash Chandra Agrawal v. Supreme Court of India, 2009 SCC OnLine CIC 13827 : 2009 CIC 13827.

[12] Supreme Court of India v. Subhash Chandra Agarwal, W.P. (C) No. 2908 of 2007, decided on 6-1-2016 (Del).

[13] Supreme Court of India v. Subhash Chandra Agrawal,  (2011) 1 SCC 496

[14] Ibid.

[15] <http://doj.gov.in/sites/default/files/memosc.pdf>.

[16] As under Section 8(1)(j) of the RTI Act.

[17] Supreme Court of India v. Subhash Chandra Agarwal, 2009 SCC Online Del 2714.

[18] State of U.P. v. Raj Narain, (1975) 4 SCC 428.

[19] Supreme Court Advocates-on-Record Assn. v. Union of India, 2015 SCC OnLine SC 1322.

[20] M. Nagaraj v. Union of India, (2006) 8 SCC 212; People’s Union for Civil Liberties v. Union of India, (2004) 2 SCC 476.

[21] Supreme Court of India v. Subhash Chandra Agarwal, 2010 SCC Online Del 111.

[22] “Right to Information: Precondition of a Transparent Government”, Professor S.P. Sathe.

[23] Ibid.

[24] Section 22, Right to Information Act, 2005.

[25] Supreme Court of India v. Subhash Chandra Agarwal, 2010 SCC Online Del 111 : AIR 2010 Del 159 (FB).

[26] The Advanced Law Lexicon, 3rd Edn., 2005.

[27] RBI v. Jayantilal N. Mistry, 2015 SCC OnLine SC 1326.

[28] 2010 SCC Online Del 111 : AIR 2010 Del 159 (FB).

[29] Ibid.

[30] <http://www.frontline.in/static/html/fl2520/stories/20081010252003500.htm>.

2 comments

  • Dear Kushal,

    I have had the opportunity of going through your well-researched and well-written article on the opaqueness of higher judicial appointments. Just as a piece of suggestion, I wish you could incorporate your opinion and insight into certain internal factors that are hampering the independence of judiciary like psychofancy, red-tapism that has crept in it etc. If you consider these suggestions as an important addition, please do it so that your paper may have a complete picture of how internal factors like I mentioned and external factors like interference of executive etc. are fettering the judicial independence.

    Best!!!

    • Thank you Puneet for taking out time to give your insight on the article. Your suggestion hits the essence of the article to the extent where it tries to answer the question: “Why is the opaqueness of the collegium system actually a problem?” My article, in the attempt to focus more on the possibilities of a solution, might have missed out on elaborating the problem. I promise to incorporate your suggestions if I write on the same theme again.
      Thank you again for you valuable comments.

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