Law

One Way to Fix the Collegium is to Televise its Proceedings

That will ensure there is public transparency both about what the collegium is looking for in a judge and what the judge herself or himself has to offer

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One rule for judges, one for everyone else. But people are supreme in a democracy, and they have a right to know the basis for the selection of judges. Credit: Mathias Klang/Flickr CC BY-NC 2.0

The hearing has begun before the Supreme Court on the question about reforming the Collegium system of appointment of judges. It is almost unanimously agreed that the collegium system lacks transparency, accountability and objectivity because of the secrecy, opaqueness and nepotism it involves, and is in need of glasnost and perestroika – as Justice Kurian Joseph said in his concurring judgment invalidating the National Judicial Appointments Commission (NJAC).

In paragraph 106 of his dissenting judgment in the NJAC case, Justice Chelameshwar said:

“As Bentham has observed, ‘In the darkness of secrecy sinister interest, and evil in every shape, have full swing..’
Transparency is an aspect of rationality. The need for transparency is more in the case of the appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks. Ruma Pal , J. is on record – “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.”

Justice Kurian Joseph, agreeing with the above observations, said:

“I agree with Chelameswar, J. that the present collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective. 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 upto the expectations of the framers of the Constitution.”

As reported in the press, Fali Nariman, the doyen of the Indian bar, said, “In Dinakaran’s case, I must say something. Very eminent people from Chennai wanted to say something about Dinakaran to the then CJI ( K.G. Balakrishnan ). Neither the CJI nor any of the members of the collegium agreed to meet them.. We were all hounded out. ”

Ad hoc, and prone to abuse

In this connection I may mention something in my personal knowledge.

When I came to know that the collegium was considering Dinakaran for elevation to the Supreme Court, I went to the chamber of Justice Kapadia, who was then a member of the collegium during a lunch interval and told him in great detail that when I was Chief Justice of Madras High Court, there were very serious allegations against Dinakaran (about alleged land grabs, etc ). I told Justice Kapadia that he was a member of the collegium while I was not, but that I had a duty to inform him about the facts, and now it was up to him to do what he wanted.

Despite my informing Kapadia, the collegium, headed by K.G. Balakrishnan went ahead and recommended Dinakaran for elevation to the Supreme Court, and it was just in the nick of time that the appointment was stalled because of the massive documentary evidence against Dinakaran produced by the Tamil Nadu lawyers, and impeachment proceedings against him by Parliament later.

Later, I reminded Kapadia that I had informed him of all the facts and said that if he had informed the collegium of what I had told him (which evidently he did not) the Supreme Court could have avoided the embarrassment the matter caused. Kapadia admitted that I had indeed informed him, but he could not do anything about it since the CJI (Balakrishnan) was pushing for Dinakaran’s elevation. But surely Kapadia could have informed the collegium of what I told him, and could have asked the collegium to invite me to present my views, which he evidently did not.

I may mention about another undeserving appointment made to the Supreme Court on the recommendation of the collegium. There was a judge originally from Kerala. He was transferred to four high courts, and everywhere he would hardly work, and left about 300-400 judgments undelivered in each place at the time of his transfer. When there was a move to bring him to the Supreme Court, a retired Supreme Court judge, also from Kerala, telephoned the then CJI Balakrishnan and asked why such an undeserving judge was being elevated. Justice Balakrishnan replied that there was no judge from his ‘community’ in the Supreme Court, and so one had to be appointed. Was this a valid reason for such appointment? And why did the other members of the collegium not object?

Even in the Supreme Court he hardly worked, and left many undelivered judgments on his retirement.

There was a further matter that I am privy to. A very senior judge in the Supreme Court, who later became CJI, wanted to get his sibling appointed judge of the Calcutta High Court. He reportedly told the Chief Justice of the Calcutta High Court to recommend the sibling’s name, although the person was then almost 60 years of age (a high court judge retires at 62) and had hardly any practice. This was strongly objected to in writing  by the judge next in seniority to the Chief Justice of the High Court, a judge known to be upright and learned. This so annoyed the Supreme Court judge that he never allowed the Calcutta high court judge to come to the Supreme Court. Consequently, the conscientious judge retired as a chief justice of a high court, while the Chief Justice of Calcutta High Court was duly rewarded for recommending the name of the sibling of the Supreme Court judge by himself being elevated to the Supreme Court.

Glasnost time

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Confirmation hearing in 2005 of John Roberts, then a nominee for the United States Supreme Court. Credit: senate.gov

I can mention several other instances of recommendations of undeserving persons made by the collegium, most of whom were subsequently appointed, causing great harm to the judiciary.

My opinion is that to ensure transparency, accountability and objectivity, meetings and discussions in the collegium should be video recorded, archived and televised. After all, the people are supreme in a democracy, and the people have a right to know what transpires in the collegium meetings, because ultimately it is they who would be affected if a wrong appointment is made.

In the United States, persons being considered for elevation to the US Supreme Court have to appear before the Senate, where they are questioned by the members not only about their judicial views and performance but also about their personal life, and these proceedings are televised. In my opinion, the persons being considered should be asked to appear before the collegium, and questioned by its members in televised proceedings, so that there is public transparency both about what the collegium is looking for in a judge and what the judge herself or himself has to offer.

Markandey Katju is a retired judge of the Supreme Court of India