How transparency in judicial appointments is coming at the cost of human rights

By Arushi Sharma

Justice Madan Lokur and Justice Kurian Joseph have written a letter to the Chief Justice of India (CJI), Dipak Misra, in response to the publication of a controversial judicial appointment resolution. The decision by the Collegium—the body that makes judicial appointments—to post the reasons for the rejection of any candidate for the court was aimed at promoting transparency in the judicial selection process. In the new letter, as reported by the Economic Times, Justices Lokur and Joseph, who are both members of the Collegium, have expressed concerns over the violation of the rejected candidates’ privacy and dignity.

Dissenting Justices fear a rights violation

A notification regarding the publication of all resolutions on judicial appointments was given on October 6, 2017. Since then, the rejection decisions for some high court candidates have been uploaded to the SC website under the new tab, “Collegium Resolutions.” Apparently, the decision was implemented by CJI Misra, however, the October 6 notification also mentioned the names of Justices Joseph and Lokur.

However, the follow-up letter that has just been released by Justice Joseph reveals that there was, in fact, a lack of consensus among the judges about the decision. Justice Lokur asserts, “While no one has any objection to any transparency, issues of confidentiality are equally important and it is necessary to balance them.”

The main objective of the decision was to ensure accountability and to address accusations of opacity in the selection process for judges to the Supreme and High Courts. According to the dissenting Justices, publishing the resolutions is a threat to the privacy of the candidates, who continue to serve as judicial officers, besides being a breach of their trust. The recent letter to the CJI raises the issue of the cost that can be incurred by administrative transparency to the detriment of human rights. In the letter, the two senior SC judges stressed that there is a need to “respect the rights of others affected by our attempt to be transparent.”

Previous attempts to improve transparency

All this begs the question of how the problems of opacity, nepotism, and judicial hegemony can be addressed in a more effective manner while avoiding problematic short-term measures like publicising sensitive information. One way to square this circle is to create an independent Judicial Appointments Commission, similar to the one that exists in the United Kingdom.

Something along these lines was attempted in India in 2014 with the establishment of the National Judicial Appointments Commission (NJAC) and the enactment of the 99th Constitutional Amendment Act 2014. The Commission was supposed to have a decisive role in judicial appointments as part of an effort to replace the Collegium method, under which the senior SC judges have the final say.

However, soon after, the structure of the NJAC was found to be unconstitutional and its foundational legislation was revoked. The Collegium has since adopted a circulation method for appointing Judges. The method, proposed by Justice Chelameswar, requires a written record of reasons for approving or rejecting the recommendations made for a judicial position. These are the records that are now being published online by the court.

A new system is still needed

Unfortunately, this occasion was not used to introduce a more rational and fully transparent framework based on some predetermined criterion. Therefore, there remains a need for an appointments system which is independent of the government and judiciary, and that will serve to strengthen the rule of law and democracy while preserving all the basic democratic principles. All the concerned stakeholders must come together to push for such a system.

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