In a landmark move aimed at ensuring transparency in the appointment of judges at a time when this process is at the centre of a row with the government over the Memorandum of Procedure (MoP), the Supreme Court Friday began uploading on its website the decisions of its Collegium on appointments and transfers in the higher judiciary.
The move to go public with its decisions, “indicating the reasons”, was taken at a meeting of the Collegium, comprising the five most senior judges of the Supreme Court, on October 3. At the meeting with Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph, Chief Justice of India
Dipak Misra proposed taking a “decision on uploading of Collegium’s resolutions with reasons, on each candidate, for elevation as Judge of High Court, Chief Justice of High Court or as Judge of Supreme Court or transfer on the Supreme Court’s official website for ensuring transparency of Collegium system”.
The matter was discussed threadbare and agreed upon by the Collegium. “The Collegium has resolved that decisions henceforth taken by the Collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India, with regard to the cases relating to initial elevation to the High Court Bench, confirmation as permanent Judge(s) of the High Court, elevation to the post of Chief Justice of High Court, transfer of High Court Chief Justices/Judges and elevation to the Supreme Court, because on each occasion the material which is considered by the Collegium is different,” an official note stated. It added: “The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system.”
As a first step, the Supreme Court uploaded on its website the Collegium’s decision on the appointment of three judges to the Kerala High Court and six judges to the Madras High Court.
This radical move comes close on the heels of the row over the transfer and subsequent resignation of Justice Jayant Patel of Karnataka High Court. It had led to demands for more transparency in the working of the Collegium system which came into existence following the 1993 decision of a nine-judge Constitution Bench in the Supreme Court Advocates-on-Record Association vs Union of India, more popularly known as the Second Judges Case.
This ruling had overturned the 1982 judgment in S P Gupta vs Union of India — the First Judges Case — which said the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. In other words, the executive retained its decisive role. The Second Judges Case ensured that primacy was accorded to the CJI under the Collegium system. But even this ruling did not end the secrecy surrounding the deliberations of the Collegium, the body responsible for appointments and transfers in higher judiciary.
The Third Judges Case was an opinion, not a ruling, by the Supreme Court in 1998 on a question referred to it by the then President, K R Narayanan. It said that the CJI’s opinion had to be formed after consulting the Collegium, and that the opinion of all members should be in writing. This was to put a check on any bias or arbitrariness. But critics of the Collegium system have pointed out that this was not adhered to very strictly.
This led to repeated run-ins with the executive. The government brought in the National Judicial Appointments Commission (NJAC) Act in 2014 which was struck down a year later by the Supreme Court as “unconstitutional”. Subsequently, the Supreme Court allowed the government to “finalise the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India”. But plans to revise the MoP have been in a logjam ever since with the Collegium objecting to some of the recommendations in the draft drawn up by the government.