Former Chief Justice of Delhi High Court A P Shah on Friday welcomed the Supreme Court collegium’s decision to place its decisions in the public domain, saying that “transparency” is required in the “process of appointment” of judges to the higher judiciary.
Justice Shah told The Indian Express that the collegium should “ideally” make the decisions public “at the stage when the High Court makes the recommendation, or before it takes up the matter”. He said: “It is a good step and I welcome this. But what is the impact of this? Any decision is going to be published. So what is the transparency here? At the most, they are giving the reasons behind it. The decision is already taken. Where the transparency is required is the process of appointment. The decision should be made public on the website, ideally, at the stage when the High Court makes the recommendation, or before the collegium takes up the matter. (The) process of selection must become transparent — about how you appoint and how you select.”
The former chairman of the Law Commission of India said that the collegium should “publish about how they judged a performance” of the person being appointed to higher judiciary. “Second, the problem is when you take a particular decision — then it is difficult to change the mind,” Justice Shah said. “The transparency should be before you take a final decision. They must also make the process of appointment transparent. They should publish about how they judged a performance, whether they interviewed a prospective candidate or the criteria for appointment or the material that is to be considered in case of such an appointment.”
Justice Shah said, “Ideally, the process should be laid down and made public. The collegium should publish annual report about working of the collegium and about how many candidates they considered, without mentioning the names. This is how it is done in the UK. In the past, successive chief justices have resisted any attempt to make the system transparent. It is a good beginning. But it is not sufficient, and the CJI should take a step ahead.”
Former attorney general of India Soli Sorabjee said the decision removes the “circle of rumours and conjectures about the decisions of the collegium”. “I heartily welcome the decision. It will generate public confidence in the proceedings of the collegium,” Sorabjee said. Senior advocates Indira Jaising and Dushyant Dave, while welcoming the decision, said that “all decisions taken by the present collegium should be made public”, including the decision to transfer Justice Jayant M Patil of Karnataka High Court.
Jaising said, “It is a welcome step. It is a first of its kind… I am particularly happy that this has come in the context of the resignation of Justice Patil… But I think all decisions taken from the time Justice Misra became the Chief Justice of India should be made public, so that it covers all the decisions made by the present collegium.”
“It is a good step and in the right direction. But they should begin by disclosing the reasons for the decision taken in Justice Patel’s case. Secondly, perhaps they would be well advised if they were to put the entire deliberations in public, rather than simply put the typed reasons as they have done in today’s case… I hope they start with Justice Patel’s deliberations and put on them on website. Because it is important for the collegium to understand if its decisions are bonafide and in public interest…,” Dave said.