New Delhi: A number of activists and former information commissioners have urged the Chief Justice of India (CJI) T.S. Thakur to ensure greater transparency in judicial appointments. Their letter comes soon after Supreme Court Justice Jasti Chelameswar questioned the practice of not keeping records of collegium meetings, saying this hurts the judiciary’s credibility.
In their letter to Justice Thakur, the activists, including Anjali Bhardwaj, Shekhar Singh, Aruna Roy, Nikhil Dey, Prashant Bhushan, Amrita Johri, Harsh Mander and Maja Daruwala, and former information commissioners Wajahat Habibullah, Satyanand Mishra and Shailesh Gandhi, have noted that it was a “matter of deep concern and anguish” that the Supreme Court “appears reluctant to be transparent and accountable to the citizens of the country”.
Asserting that “opaqueness in the process of judicial appointments has been a matter of much public debate and discussion,” they wrote that the 2015 judgment of the Supreme Court in the National Judicial Appointments Commission matter also “underlined the need to enhance transparency in the functioning of the collegium system”.
Pointing out that “information about the process and basis of selection of judges is not disclosed to the citizens of the country,” the letter also observed that “reportedly, minutes of collegium meetings are not maintained, making the proceedings of the collegium inaccessible not just to the public but also to history.”
Referring to the objections raised by Justice Chelameswar, the letter said: “The refusal of Justice Chelameswar to attend meetings of the collegium on the grounds that it’s functioning lacks transparency to the extent that even some members of the Collegium are unaware of the basis on which judicial appointments are made, points to the deep malaise that afflicts the judicial appointment process. His views have been echoed by other legal luminaries, including former CJIs.”
It went on to add that “such a state of affairs erodes public trust in the institution which billions of Indians look towards to uphold democratic principles and deliver justice.”
Saying that the Supreme Court has held on various occasions that all judicial, quasi-judicial and administrative orders must contain detailed reasoning and that no order or decision is complete till its reasoning is recorded (for instance Manohar s.o Manikrao Anchule v. State of Maharashtra and Anr, 2012), the letter said “there can, therefore, be no possible justification for not recording the reasoning for perhaps the most important decision the judiciary makes, namely, who should become a judge.”
Further, it referred to how in numerous cases, the apex court has ordered that appointments must be made in a transparent manner on the basis of rational criteria which are appropriately recorded. In the case of Union of India vs Namit Sharma, a review petition of 2013, the court had said: “We further direct that the Committees …while making recommendations ….for appointment of … Information Commissioners must mention against the name of each candidate recommended, the facts to indicate …his experience in the particular field and these facts must be accessible to the citizens as part of their right to information under the Act after the appointment is made”.
Similarly, the letter mentioned the case of Centre for PIL Vs. Union of India, 2011, related to appointment of P.J. Thomas as the central vigilance commissioner, where the Supreme Court had held that “…in cases of difference of opinion amongst the Members of the High Powered Committee…if one Member of the Committee dissents that Member should give reasons for the dissent and if the majority disagrees with the dissent, the majority shall give reasons for overruling the dissent. … transparency would emerge which would also maintain the integrity of the decision- making process. …The empanelment shall be carried out on the basis of rational criteria, which is to be reflected by recording of reasons …”
In light of such landmark directions, the activists and former information commissioners demanded that necessary measures be taken to “ensure transparency in the process of appointment of judges”.
They urged the CJI to act towards “making the eligibility criteria and process for selection of judges public”. They have also demanded setting up a broad-based search committee along the lines of the search committee envisaged in the Lokpal & Lokayuktas Act, 2013 to assist the collegium in shortlisting appropriate candidates. “The search committee could predominantly consist of judicial members. The committee should issue an advertisement inviting eligible people to apply and should also have the freedom to employ other methods they deem appropriate to search out potential candidates,” the letter suggested.
Justice Thakur has also been urged to make the “names of short listed candidates public, along with all available details, including details of how they satisfy the eligibility criteria, why they were selected over those who were not, and their background details such as asset declarations etc., at least eight weeks before the collegium meets to finalise the appointment of judges. This would afford people an opportunity to send in relevant information or objections to the proposed appointments.”
The activists have also called for “putting in place an appropriate procedure to maintain minutes of all meetings of the collegium. The minutes must record reasons for decisions taken and dissenting opinions, if any.” Also, they have demanded that “after the appointments have been made, the minutes of the meetings of the collegium should be made public in compliance with sections 4(1)(c) and 4(1)(d) of the RTI Act.”
The taking of these steps, they hoped would “ensure sustained public trust in the judiciary and the credibility of this critical institution”.