Judges Are Not Above Law; Judicial Appointment Process Must Be Made Transparent; holds Supreme Court

Dinesh Singh Chauhan, Advocate
High Court of Judicature, Jammu.
The importance of transparency is paramount, and it is identified in the Lilongwe Principles and Guidelines as an overarching principle that should “permeate every stage” of the selection and appointment process. As indicated in the explanatory text, transparency is a cross-cutting principle that is necessary for enhancing the integrity of, as well as public confidence in the process.
The Supreme Court Collegium’s decision to disclose the reasons for its recommendations marks a historic and welcome departure from the entrenched culture of secrecy surrounding judicial appointments. It will provide a window of understanding into the mind of the Collegium. Judicial independence is not a shield to protect wrong. It is not a carte blanche to arbitrary behaviour.
Penning separate but concurring opinion while dismissing the appeal against Delhi HC Judgment that held Office of Chief Justice of India is under purview of RTI Act, 2005 Justice D. Y Chandrachud observed that the basis for the selection and appointment of Judges to the Higher Judiciary must be defined and placed in the public realm.
This would promote confidence in the appointments process, and also would foster a degree of transparency and promote accountability in decision making at all levels within the Judiciary and the Government, observed Justice Chandrachud.
The Collegium is a victim of its own birth – pangs
The Collegium owes its birth to judicial interpretation. In significant respects, the Collegium is a victim of its own birth – pangs. Bereft of information pertaining to both the criteria governing the selection and appointment of Judges to the Higher Judiciary and the application of those criteria in individual cases, citizens have engaged the constitutional right to information, facilitated by the RTI Act.
There is a vital element of ‘Public Interest’ in knowing about the norms
What needs to be emphasised is that the substantive standards which are borne in mind must be formulated and placed in the public realm as a measure that would promote confidence in the appointments process. Due publicity to the norms which have been formulated and are applied would foster a degree of transparency and promote accountability in decision making at all levels within the Judiciary and the Government. The norms may also spell out the criteria followed for assessing the Judges of the district judiciary for higher judicial office. There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office particularly having regard to merit, integrity and judicial performance.
the criteria followed in making Judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process.
If the content of right and enforcement of statute are to possess a meaningful dimension in their application to the judiciary – as it must, certain steps are necessary. Foremost among them is that the basis for the selection and appointment of Judges to the higher judiciary must be defined and placed in public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments. There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial officer and making judicial appointments. Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the Collegium system postulates that proposals for appointment of judges are initiated by the judges themselves.
“Essential substantial norms in regard to judicial appointments include: (i) The basis on which performance of a member of the Bar is evaluated for the purpose of higher judicial office; (ii) The criteria which are applied in determining whether a member of the Bar fulfils requirements in terms of: a) Experience as reflected in the quantum and nature of the practice; b) Domain specialization in areas which are geared to the evolving nature of litigation and the requirements of each court; c) Income requirements, if any, having regard to the nature of the practice and the circumstances prevailing in the court or region concerned; d) The commitment demonstrated by a candidate under consideration to the development of the law in terms of written work, research and academic qualifications; and e) The social orientation of the candidate, defined in terms of the extent of pro bono or legal aid work; (iii) The need for promoting the role of the judiciary as an inclusive institution and its diversity in terms of gender, representation to minorities and the marginalized, orientation and other relevant factors.
A batch of three Civil Appeals raised questions of constitutional importance having bearing on ‘the right to know’, ‘the right to privacy’ and ‘the transparency, accountability and independence of the judiciary’. In one of the appeals (the appointments case), the Central Public Information Officer of the Supreme Court of India challenged an order dated November 24, 2009 of the Central Information Commission, whereby, the CPIO was directed to provide information sought by the respondent in application under the Right to Information Act 2005 with regard to the correspondence exchanged between constitutional authorities together with file notings, relating to the appointment of Justice H. L. Dattu, Justice A. K. Ganguly and Justice R. M. Lodha (superseding the seniority of Justice A. P. Shah, Justice A. K. Patnaik and Justice V. K. Gupta).
On November 26, 2010, a two Judge Bench of Supreme Court directed the Registry to place the batch of appeals before Chief Justice of India for constituting a Bench of appropriate strength and framed the following substantial questions of law:
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?
2. 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?
3. Whether the information sought for is exempt under Section 8 (1)(j) of the RTI Act?
On August 17, 2016, a three Judge Bench referred the Civil Appeals to a Constitution Bench for adjudication.
Judges are not above law
Judicial independence is not secured by the secrecy of cloistered halls. It cannot be said that increasing transparency would threaten judicial independence. The need for greater transparency and accountability in the appointment procedure or the lack of the same, has also been highlighted by other eminent retired Judges such as Justice J. S. Verma & Justice Ruma Pal in “Supreme Court Advocates-on-Record Association v Union of India (NJAC‘), 2016 5 SCC 1. In an Article quoted in Justice Lokur‘s separate concurring opinion in the NJAC decision, Justice Verma while speaking about the Collegium system observed:
“546…Have any system you like, it’s worth and efficacy will depend on the worth of the people who work it! It is, therefore, the working of the system that must be monitored to ensure transparency and accountability.”
Furthermore, Justice Chelameswar, in his dissenting opinion, referred a speech made by Justice Ruma Pal, where she stated thus:
“The process by which a judge is appointed to a Superior Court is one of the best kept secrets in this country. The very secrecy of the process leads to an inadequate input of information as to the abilities and suitability of a possible candidate for appointment as a Judge. A chance remark, a rumour or even third-hand information may be sufficient to damn a judge‘s prospects. Contrariwise a personal friendship or unspoken obligation may colour a recommendation. 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.”
The transparency of criteria and the process is a logical extension of the judicial appointment being ‘meritorious’, and that doing so would remove the ‘arbitrariness’ of the process, leading to upholding of Rule of Law. The transparency is necessary to ensure the public perception of the judiciary as independent. In the context of judicial appointments, appointments may happen on a proper, well- justified, substantive understanding of judicial merit. However, in order for the same to be truly independent, they must include within themselves the transparency of the criteria and openness of the process.
“56. Judicial independence does not mean the insulation of judges from the rule of law. In a constitutional democracy committed to the rule of law and to the equality of its citizens, it cannot be countenanced that judges are above the law. The notion of a responsible judiciary furthers the ideal for which an independent judiciary was envisaged. It is the exercise of the decision making authority guaranteed by judicial independence in a just and responsible manner, true to the ethos of judicial office that sub-serves the founding vision of the judiciary …….To be continue ……….”