Common sense rules

Not the least of the reasons why the judgment is good is that it accords with the common sense view of the purpose of consultations which is to produce the best possible outcome for the Supreme Court or the high courts, as the case may be. All these are reasons to welcome the judgment.

However, it is a sad comment on the times that the 1993 guidelines have proved inadequate and more elaborate procedures have had to be laid down. One of them goes to the extent ofrequiring opinions in writing from the collegium of judges involved in the consultation process.

But there is little point in wringing one’s hand over the deteriorating standards of conduct. Far better to take a practical view of the matter and look for practical solutions as the Constitution bench has done. Thus, after the controversial manner in which former Chief Justice of India M. M. Punchhi went about his business, it makes sense to put up additional barricades against aberrant behaviour.

One which nullifies the outcome of an inappropriate process is the ruling that the executive is not bound by the CJI’s recommendations in instances where the proper and full process of consultation has not been followed. To guard against cronyism, it is made obligatory for the CJI to consult the four seniormost judges of the Supreme Court, instead of merely two as hitherto, on appointments to the apex court.

Forwarding to the executive the views in writing of each of the judges in the collegium, along with theCJI’s recommendation, will lend more transparency to the process. In allowing for a recommendation to be vetoed by two of the four judges, the intention is to remove controversy and reaffirm collective decision-making. A similarly elaborate scheme applies to the appointment and transfer of high court judges.

The Constitution bench is very confident that the procedures it has instituted will provide the necessary checks and balances. So much so that although the right of judicial review of cases of transfer from a High Court is upheld in principle, the ground of bias is no longer available to an aggrieved judge. Henceforth transfers can be challenged only on the ground that the procedures laid down by the Supreme Court in 1993 and 1998 have not been observed. One must sincerely hope that "the collective exercise of several judges at the highest level on objective criteria" will indeed act as an in-built check against arbitrariness and bias. Now, carry out the new, tighter procedures and fill all thevacancies in the courts.