Collegium opaque and dictatorial

Justice Chalameshwar demands transparency in judicial appointments

While Justice Madan B Lokur opposed total transparency in National Judicial Appointments Commission (NJAC), Justice Chalemeshwar pointed out how absolute opaqueness accommodated lobbying. Justice Kurien explained how collegium was completely dictatorial. Madan Lokur said that there can be no doubt that the Government of India is a major litigant and for a Cabinet Minister to be participating (and having a veto) in the actual selection of a judge of a High Court or the Supreme Court is extremely anomalous.

It was held in Indian Express Newspapers v. Union of India (1985) 1 SCC 641 that the people have a right to know. In Attorney General v. Times Newspapers Ltd. 1973 (3) All E R 54 and in State of UP v. Raj Narain 1975 (4) 428, the right to know was recognised as a fundamental principle of the freedom of expression and the freedom of discussion.

In Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay (P) Ltd.(1988) 4 SCC 592, Supreme Court emphatically stated that the right to know is a basic right which the citizens of a free country aspire in the broader horizon of the right to live in this age in our land under the Article 21 of our Constitution.

Madan Lokur said that the right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with the implicit fundamental right to privacy that all people enjoy. The balance between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far-reaching impact on his/her reputation and dignity.

The 99th Constitution Amendment Act and the NJAC Act have not taken note of the privacy concerns of an individual. This is important because it was submitted by the learned Attorney-General that the proceedings of the NJAC will be completely transparent and anyone can have access to information that is available with the NJAC.

This is a rather sweeping generalisation which obviously does not take into account the privacy of a person who has been recommended for appointment, particularly as a judge of the High Court or in the first instance as a judge of the Supreme Court. The balance between the two implied fundamental rights is difficult to maintain, but the 99th Constitution Amendment Act and the NJAC Act do not even attempt to consider, let alone achieve that balance.

It is possible to argue that information voluntarily supplied by a person who is recommended for appointment as a judge might not have a right to privacy, but at the same time, since the information is supplied in confidence, it is possible to argue that it ought not be disclosed to third party unconcerned persons.

Also, if the recommendation is not accepted by the President, does the recommended person have a right to non-disclosure of the adverse information supplied by the President? These are difficult questions to which adequate thought has not been given and merely on the basis of a right to know, the reputation of a person cannot be whitewashed in a dhobi-ghat.

Absolutely opaque
Justice Chalameshwar answered this question effectively saying proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks...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 is good for the people of this country. He held that ever-rising pendency of cases warranted a “comprehensive reform of the system.”

The Supreme Court held in Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr. (AIR 1967 SC 1, para 20):
20. ...Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice.

Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial tribunals, courts must generally hear causes in open and must permit the public admission to the court-room.

Justice Chalameshwar explained how lobbying crept in, quoting Ruma Pal J who said: “Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.” (Para 195)

Dictatorial collegium
Justice Kurien Joseph saw the need for perestroika and glasnost in judiciary; he said: …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, the dictatorial attitude of the collegium seriously affecting the self-respect and dignity, if not, independence of Judges, the court, particularly the Supreme Court, often being styled as the Court of the collegium, the looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time.

These allegations certainly call for a deep introspection as to whether the institutional trusteeship has kept up the expectations of the framers of the Constitution. …. To me, it is a curable situation yet. There is no healthy system in practice. No doubt, the fault is not wholly of the collegium. The active silence of the Executive in not preventing such unworthy appointments was actually one of the major problems...The Second and Third Judges Case had provided effective tools in the hands of the Executive to prevent such aberrations.”

Chief Justice of India J S Khehar said that it is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent from the other organs of governance.

He also said: “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.” He is right. We know how some judges behaved recently.

Without a system to receive and handle complaints, there is no scope for improving governance of any wing, including judiciary. It is reported that the Ministry of Law is inundated with complaints against judiciary; 15% are allegations of corruption in courts, while 10% are against unfair judgments and 47% are about delay in delivery of judgments.

The government pointed out serious lacunae at recent regional-level meeting held with the judiciary, that ,“unlike other departments, grievances redressal mechanisms are almost non-existent in case of judiciary,” and that all the grievances forwarded are hardly resolved. The government has suggested creation of a public grievance portal in each High Court, to upload the reply on the portal.

A nodal officer has to periodically review redressal and file a report. This report says that the government suggested creation of a public grievance portal on websites of each of the High Courts. Action taken reports shall be uploaded on the portals, a petition for early hearing should be examined to tackle the complaints against the delay, a reasoned reply must be given to the petitioner, even if a grievance cannot be settled, and a nodal officer must be appointed in each of the High Courts for handling public grievances. The nodal officer must periodically review the complaints received and place them before the Chief Justice. (Based on the order of CIC in Subhash Chandra Agrawal v Ministry of Law & Justice, CIC/VS/A/2014/000989-SA decided on 3.5.2017)