The extent of disclosure and effective working of the model is likely to be heard and decided by the five-judge bench starting 3 November
Suggestions that the judicial administration should be brought under the purview of the Right to Information Act, 2005, to ensure transparency in the judicial system are not new.
These suggestions have surfaced anew after the Supreme Court’s decision to strike down the National Judicial Appointments Commission (NJAC), which would have given the executive a say in the appointment of Supreme Court and high court judges.
For many years, information about judicial appointments has been closely guarded by the judiciary and attempts to gain access to such information stiffly resisted.
During hearings on the NJAC, justice J.S. Khehar expressed apprehensions about exposing judicial appointments to “too much transparency.”
Such a refrain was also heard when the judiciary stayed an order of the Central Information Commission (CIC) on divulging information pertaining to the appointment of three judges to the apex court, in the process superseding more senior judges.
This was repeated through the refusal of judiciary to disclose communication between former CJI, Balakrishnan and justice R. Raghupathy of Madras high court on alleged interference by a union minister in a sub-judice matter.
Though the NJAC has been held as unconstitutional as a whole, the judiciary has not failed to acknowledge flaws in the prevailing collegium system, under which a small group of judges appoint other judges, and adopt measures to correct them.
This exercise is to begin on 3 November with a five-judge bench presided by Khehar inviting appropriate suggestions from the executive to strengthen the existing mechanism of appointments and transfer of judges of higher judiciary.
Recognizing the need for transparency in the system, justice J. Chelamsewar, the judge with the dissenting opinion in the 4-1 majority decision in the 1,024-page judgment which struck down the NJAC, said: “Proceedings of the collegium system were absolutely opaque and inaccessible to both public and history. Transparency is a vital factor in constitutional governance, more so in case of appointments.”
A similar view was taken by R.M. Lodha, former chief justice of India, during a Times Now debate on NJAC on 23 October.
Because of the opaque nature of the collegium system, the first step anticipated in making the system transparent would be to bring it under the ambit of the RTI Act. This move would ensure that information pertaining to appointment of a particular candidate to the higher judiciary is available to everybody.
“This could be an encouraging step to check appointments which are made by bypassing the collegium system. It is known that justice A.P Shah’s candidature (for elevation to the Supreme Court) was opposed by justice (S.H.) Kapadia, who was then a part of the collegium. Bringing RTI of collegium into effect would ensure that reasons for non appointment are recorded leading to fair appointments.” said Subhash Chandra Agrawal, a leading RTI activist.
Information like names of advocates nominated for higher posts, their credentials, biodata, reason for selection or rejection of a particular candidate, correspondence between judicial members involved in the selection process, in-house procedures, reasons for elevation of a particular person who might not be seen as suitable would be readily available, if brought under the provisions of the RTI Act.
Having successfully protected confidentiality of such information in the past, the judiciary might have to forsake this control so as to dilute the absolute nature of the prevailing collegium system.
The extent of disclosure and effective working of this model is likely to be heard and decided by the five- judge bench scheduled to take suggestions from the government for improving the collegium system starting on 3 November.
