The collegium system of appointing judges to the higher judiciary has been a disaster. The annulling of the law to replace the system has been a greater disaster. The Supreme Court had itself accepted that the collegium system is wholly unwholesome and required reform. But the distinguishing feature of the superior judiciary has been the complete mismatch between precept and practice. The legal propositions so eloquently laid down are all generally observed in the breach.
What has come into sharp focus in the past few days is the total lack of transparency in the proceedings of the collegium, which are opaque even to its own members. The judiciary is characterised by a total lack of accountability, and the problem is confounded with administrative proceedings shrouded in secrecy, rendering the entire process wholly unacceptable. What we learn is that the proceedings of the collegium are not recorded and no dissent is noted. The so-called final decision is transmitted to the executive government for follow-up action.
Transparency and accountability are the hallmarks of good administration. This is largely achieved by proceedings and decisions being based on reasons, and dissent being recorded and made available for scrutiny. Secrecy is the bulwark of inefficiency and corruption. Sunlight is the best disinfectant, and our endeavour should be to spread the sunlight. A judiciary that solemnly preaches this cannot itself be guilty of not having these attributes. Reasons are the links in the chain of decisions. Giving reasons imparts transparency to the process, and that involves recording the minutes of deliberations, including any dissenting views. This helps to rationalise the decision, to structure the exercise of discretion, to address oneself to relevant factors that ought to be considered. A rational criticism of any action or decision is possible only when the reasons for that are known.
It reduces the possibility of whim and caprice. It enables the exercise of effective control over the exercise of discretion. Today unfettered and unreviewable discretion is a contradiction in terms. It is important that not giving reasons leads to an inference that there were no reasons at all or at any rate no good reasons.
This can destroy a possible nexus and vitiate the order on the ground of mala fides. That should apply as much to the court itself. The matter of selection, appointment and transfer of judges is pure and simple administrative and susceptible to judicial scrutiny.
A facade of unanimity helps no cause. Unanimity is something to be piously hoped for but it is not always practical. Unanimity or a show of it would sometimes throw up situations where there was no independent and impartial thinking and no expression of one’s sincere views. Unanimity without sacrifice of conviction commends itself but unanimity that is merely formal and at the expense of strong conflicting views is neither desirable nor acceptable.
The Supreme Court has said that impartiality, independence, fairness, reasonableness in decision making are the hallmarks of the judiciary. That must also inform its actions and decisions on the administrative side if it were to win respectability and acceptability. When the court acts on the administrative side — the collegium and its deliberations included — it is as much open to judicial scrutiny and review as any other administrative action. Half a century ago the court famously laid down that even in matters where there has to be subjective satisfaction there ought to be objective standards and guidelines to arrive at the satisfaction. Such objective standards and criteria are totally absent in the matter of selection, appointment and transfer of judges, leading to a very unsatisfactory situation.
The judicial independence touted by the court is not an end in itself. It is important for upholding the rule of law and securing the rights of the people. But the way the judiciary presently functions dents the rule of law and brings itself down in public estimation. The court bemoans the delay in the appointment of judges and delivery of justice. But nothing that it does, particularly what has come out into the open in recent days, inspires public confidence or respect.
The basic premise is that “the process of appointment of judges to the superior judiciary is an integrated participatory consultative process for selecting the best and most suitable persons available”. This underlines the need for certain objective suitability criteria apart from the basic eligibility criteria. It is only when actions are capable of being tested against such objective criteria that they could be judged as fair and reasonable. It may be appropriate to have a database regarding attainments, distinction, performance of candidates and a more meaningful assessment of all this by some institutional mechanism. The consultation between the judiciary and the executive has to be effective and meaningful. That can be achieved only when there are objective standards by which persons and situations are tested. Otherwise the exercise may incur the criticism of being farcical. Without this there is no accountability. Nothing can be more damaging to the fairness of procedure and the cause of justice.
Apart from this general legal position, this requirement and procedure were mandated by the Supreme Court in the Three Judges Case. It has been declared that the views of all members of the collegium are to be recorded in writing, and such a record with the dissenting notes, if any, is to be forwarded to the government. The reiteration of a recommendation considered unsuitable and returned by the government should be unanimous. It should be borne out by the record of the collegium with every member expressing his views in writing. It is this which is binding on the government. That almost for two decades the law laid down has been observed more in the breach is both sad and unpardonable.
Judges both in their judicial work as well as administrative work function under the Constitution and the law. They are as earthly as anyone and all that they do should be under public glare and scrutiny. Any other view is archaic and out of tune with the constitutional democratic ethos.
In a democracy it is puerile to suggest that people should not be acquainted with the truth about the working of any branch of government including the judiciary. The citizen’s right to know and be informed of all happenings and decisions flows from the constitutional guarantee of free speech and the concept of open government inherent in a democratic system.
The selection and appointment of judges and the functioning of the judiciary is too serious a matter to be shrouded in secrecy and opaqueness and left to a few robed dignitaries.
The problem has come to centrestage not a day too soon. Silence is not a virtue when there is a duty to speak out. Dante’s words come home with a strange poignancy: The hottest places in hell are reserved for those who maintain their neutrality in a time of great moral crisis.
The earlier corrective measures are taken and the sooner judiciary falls in line with the practice that it preaches, the better for the system and the nation. He that takes the procedural sword shall perish with the sword. Who watches the watchmen? If the salt has lost its savour, wherewith shall it be salted?
Sudhish Pai
An expert on the Indian Constitution