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Transparency move in judicial appointments: How transparent is the move actually ?

By Karan Anand

In a historic move to ensure transparency in judicial appointments, the Supreme Court collegium will now post details of judicial appointments, transfers and elevations for public consumption on its website. The information posted online will also include details which will indicate reasons for the appointment or rejection of a judge. It will also include reasons for transfer and elevation of a judge to High Courts and the Supreme Court. To start off, the Supreme Court has already posted details for its October 3, 2017, recommendations for the Madras and the Kerala High Court on its website under the tag “collegium resolutions”. A note titled “Transparency in collegium system”, signed by all the five members of the collegium including the newly appointed Chief Justice of India, Deepak Misra, has been uploaded on the website. It said, “The resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system.”

What exactly is the collegium system?

The Collegium is led by the Chief Justice of India along with the four senior-most judges of the Supreme Court. They collectively recommend appointments and transfer of judges. The word “collegium” has no mention in the Indian constitution. Article 124(2) and Article 217 of the Indian constitution explain how judges will be appointed for the SC and HC. Both the articles say that the judges shall be appointed by the President of India after “consultation” with the judges of the SC and HC.
In 1998, when KR Narayan was the President, he asked the SC to explain the meaning of the word “consultation” to draw clearer lines regarding the appointment of judges. In the “Three judges case” on October 28, 1998, the Supreme Court lays down that a “collegium” will be formed constituting of the CJI along with four senior-most judges of the SC. This collegium shall make decisions regarding the appointment and transfer of judges and give the names to the President, who will eventually appoint them.

Drawbacks of collegium system

Since 1998, the collegium system has been used to make judicial appointments and transfers. Just like every other government system, it has had its fair share of criticism. The biggest problem with the system was lack of transparency. With this latest move, the SC has resolved this problem by making every detail public. Another prevailing problem is that of Nepotism. The judges are often criticized for favouritism and appointing their own friends and family members as judges.In June 2013, the Madras High Court Advocates Association (MHAA) gave a representation to the Chief Justice of High Court regarding a list of 15 judges recommended by the collegium. It said, “It appears that the names have been proposed on extraneous criteria such as caste, religion, office affiliations, political considerations and even personal interests.”CJI Deepak Misra has himself been a staunch critique of the lack of transparency in the collegium, thereby he spearheaded this welcome change.

NJAC and government intervention

National Judicial Appointments Commission (NJAC) is a body proposed to replace the existing collegium system.The NJAC will consist of six members including the CJI, two senior most judges of the SC, the union law minister and two eminent personalities. These two eminent personalities will be chosen by a committee consisting of the PM, CJI and the leader of the opposition. By December 31, 2014, the draft for NJAC had been passed by both the houses and even signed by the President. In 2015, following a PIL passed by Prashant Bhushan and Ram Jeth Malani, the SC declared it as unconstitutional. Judiciary is an independent body free of any government intervention but the government clearly wants to keep a tap on its autonomy and have a greater say. In March 2017, the SC collegium, led by the then CJI JS Khehar, rejected the Centre’s plea to review their stand on having the last word in judicial appointments. The SC and HC are autonomous bodies free from any government influence and it should remain the same. The government may try to change this but the judges should remain firm on their decision and keep hold of their autonomy. Changes like making every detail public are welcome and the SC should introduce more such changes and reduce any scope for government interference.

Featured image source:  Wikimedia Commons

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