The missing links in the Supreme Court’s released documents on judicial appointments

LAST WEEK, the outgoing Chief Justice of India (CJI), Justice B.R. Gavai, while responding to a question from the media, said that the Collegium had unanimously decided not to publish reasons for its recommendations. He justified this by saying that giving reasons might hamper the future prospects of the candidates concerned.

I would return shortly to Justice Gavai’s decision to retreat from transparency. First, however, it is necessary to set out in detail how the Collegium, under different CJIs, has oscillated between opacity and some semblance of transparency and accountability in the appointment process.

A system that slipped into opacity

The Collegium system, which owes its existence to judicial interpretation, came into being in 1993. Since then, the power to appoint judges has rested primarily — at least de jure — with the Collegium. 

This mode of appointment of judges, whereby judges appoint judges, is often defended as essential to safeguarding judicial independence, ensuring that appointments are not predominantly at the behest of the executive, which itself constitutes a large chunk of the litigants before the courts.

Speaking at the 5th V.M. Tarkunde Memorial Lecture in 2011, former Supreme Court judge and the first woman judge to make it to the Collegium, Justice Ruma Pal 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.”

Concerns about the opacity of the Collegium’s functioning have been raised repeatedly. Justice Jasti Chelameswar, in his sole dissenting judgment in the NJAC case, famously observed: “Unfortunately, the correspondence between the Government and the CJI and the record of the consultation process are some of the best-guarded secrets of this country.”

Justice Chelameswar, who had been a member of the Supreme Court Collegium and retired as the senior-most judge of the Supreme Court, boycotted Collegium meetings when Justice T.S. Thakur was CJI to protest the lack of transparency. Yet matters continued unchanged — opaque as ever. No one knew on what basis, or for what reasons, particular candidates were recommended for judgeship. 

In those days, the Collegium did not even issue official statements announcing that a particular candidate had been recommended for appointment or transfer. Justice Kurian Joseph, though he did not strike down the Constitution (Ninety-ninth Amendment) Act and the National Judicial Appointments Commission Act, 2014, agreed with Justice Chelameswar that the Collegium system lacked transparency, accountability, and objectivity. He highlighted that certain appointments were deliberately delayed either to favour preferred choices or to deny benefits to those less favoured.

Since all five judges in the NJAC case agreed that the Collegium’s functioning needed improvement, they listed the matter for further hearing. Eventually, on December 16, 2015, the Supreme Court closed the case, directing the government to finalise the Memorandum of Procedure (MoP) in consultation with the CJI. 

The order specifically required the MoP to include eligibility criteria (such as minimum age) for the guidance of the Collegium (both at High Court and Supreme Court levels) after inviting views from the State Government and the Government of India, as the case may be. The order further directed that the eligibility criteria and the appointment procedure detailed in the MoP must be placed on the website of the court concerned and the Department of Justice of the Government of India. 

It suggested that the MoP provide for minuting discussions, including recording dissenting opinions, while maintaining confidentiality consistent with transparency. It also recommended establishing a secretariat for each High Court and the Supreme Court, and an appropriate mechanism for handling complaints against persons being considered for judicial appointment.