As SC Collegium Ushers In Transparency, Justice Jayant Patel’s Resignation Has Not Been In Vain

By making its proceedings public, the collegium has finally realised that it did not need to wait for the Centre to act in order to kick off a reform process.

Supreme Court. Credit: PTI

Supreme Court. Credit: PTI

New Delhi: Last month, Justice Jayant Patel of the Karnataka high court resigned after being asked to consent to a Supreme Court collegium-initiated transfer to Allahabad high court.

With his resignation having been accepted by President Ramnath Kovind, his symbolic protest would have remained just that. But the protests it triggered among lawyers have had an immediate and unexpected fall-out: reform within the collegium.

On Friday, as the five-member collegium – comprising Chief Justice Dipak Misra, and Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph – decided to make its proceedings public, it took a significant step to restore its credibility which suffered a dent in the wake of Justice Patel’s resignation.

The Supreme Court’s website has now added a new section titled “Collegium Resolutions” under the case information section. To start with, the section makes the resolutions and recommendations of the collegium to the Centre accessible to the public. Its very first resolution on October 3 is on the relevance of transparency. It makes the point that the collegium recommends appointments of additional and permanent judges and chief justices to the high courts, and their transfers, apart from the Supreme Court judges, and in each of these functions, the materials considered by it is different. The resolution, therefore, aims at balancing transparency and confidentiality in the collegium system, by making these materials public.

By a curious coincidence, the famous ‘Second Judges Case’, which created the collegium, was decided by a nine-judge bench of the Supreme Court on October 6, 1993. It has, therefore, taken 24 years for it to become transparent.

By itself, however, transparency in the collegium system is not a new proposal. It was suggested by the Supreme Court’s constitution bench – which set aside the National Judicial Appointments Commission Act (which had been brought in by the Modi government soon after it came to power) – to replace the collegium. Sadly, the bench made the mistake of entrusting the government with the responsibility of drafting a revised memorandum of procedure (MoP) to incorporate the principle of transparency, along with others, in order to reform the functioning of the collegium, which it admitted left much to be desired. That was in December, 2015.

Almost two years down the line, the revised MoP has still not seen the light of the day, with the  Centre not willing to cede space to the collegium in the battle for primacy over the process of appointments and transfers. Fortunately, wisdom has prevailed on the collegium that it need not endlessly await the finalisation of the revised MoP to reform itself, and that there is nothing in the existing MoP which prevents it from shedding sunlight on its functioning.

It is in this context, the transfer of Justice Patel, and his subsequent resignation, raised questions about the collegium’s so-called independent functioning. Although there is nothing on record to suggest that the collegium decided to recommend Justice Patel’s transfer to Allahabad High Court on the government’s bidding, the collegium had no mechanism to clear the cloud of suspicion over it; except perhaps to make vacuous statements that its decision was unanimous and that it had considered all available inputs. Leaving aside the fact that a unanimous decision may not always be the correct one, there was no further transparency as to what inputs the collegium considered and why it thought Justice Patel’s transfer would be in the interest of administration of justice.

Having heralded transparency over its functioning henceforth, the collegium should not also pose hurdles, in making available the archives of its decisions to public scrutiny under the Right to Information Act.

Reform opportunity

In taking the first step to reform the collegium, special credit must go to Justice J. Chelameswar, who is currently senior-most in the hierarchy after the CJI, Dipak Misra. Justice Chelameswar is unlikely to become the next Chief Justice of India as he is set to retire on June 22, 2018. CJI Misra’s tenure will come to an end only by October 2018.

Ever since his sole dissent in the constitution bench’s judgment in the NJAC case, Justice Chelameswar has waged a lone battle within the collegium to bring about some degree of order and transparency to its functioning. He refused to attend meetings and opted to submit written notes on the merits of the proposed candidates as the collegium headed by successive Chief Justices refused to record the minutes of the meetings for posterity.

The composition of the current collegium wherein three of them – Justices Chelameswar, Lokur and Kurian Joseph – were members of the five-judge constitution bench which passed a consequential judgment unanimously on collegium reform in December 2015 is a very relevant factor as to why the collegium must have thought reform could no longer be postponed.

The details of the recommendations of the collegium with regard to appointment of six judges to the Madras high court, and three judges to the Kerala high court show that the collegium has struck a balance between transparency and confidentiality by withholding the names of the consultee-colleagues. Of the 10 candidates recommended by the Madras high court collegium, and cleared by the Tamil Nadu governor and the chief minister, the Supreme Court collegium did not consider three of them as suitable for elevation as judges of the Madras high court, and wanted consideration of one deferred pending result of an ongoing inquiry.

The collegium’s decision to also explain why a particular candidate is not being recommended for appointment is praise-worthy. It may be argued that by making public the reasons for non-appointment of a candidate, his or her reputation may come under a cloud, and that could create doubts about the person’s competence for the current position which he or she holds.

But the collegium apparently has not seen any merit in this contention.

While explaining the non-appointment of Vasudevan V.Nadathur, Judicial Member, Income Tax Appellate Tribunal (ITAT), Kolkata, B. Sarodjiny Devy, Principal District Judge, Villupuram, (whose consideration it wanted to defer) A. Zakir Hussain, Additional Chief Metropolitan Magistrate, Egmore, Chennai, and K. Arul, District Judge, the collegium has made public the absence of agreement among its consultee-colleagues without specifying the exact reasons for their disagreement on their suitability for appointment as judges. And thus, a balance, whether perfect or not, has been struck between transparency and confidentiality. 

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