All is still not well in courthttps://indianexpress.com/article/opinion/columns/supreme-court-appointments-of-judges-cji-5578913/

All is still not well in court

Over a year after an unprecedented press conference by senior judges flagged the challenges, opacity and lack of accountability remain pressing concerns.

Supreme Court, appointments of judges, judges dissent, supreme court judge press conference, Ranjan P Gogoi, NJAC, collegium, judge appointment, Indian express
The appointments of judges on grounds other than merit can be self-perpetuating. (Illustration: CR Sasikumar)

A little over a year ago, four judges of the Supreme Court of India called an unprecedented press conference to tell the world that everything was not right with the judicial system. Their announcement posed troubling questions relating to the independence of the judiciary, transparency and accountability in the institution and so on. Three of the judges have since retired, and the fourth, Justice Ranjan P Gogoi, has become the Chief Justice of India (CJI). Around the time he took over, in a much-publicised speech, he also spoke about his vision of justice. A lot has happened in the year gone by for the Indian judiciary. Certain developments are of particular concern to me, which I discuss here.

The first major issue is the idea of the CJI as the “master of the roster”. The previous CJI was criticised by many for the manner in which cases were allocated to judges under his watch, and for selectively choosing the benches that would hear cases of public importance. In democratic countries around the world, notably in the UK, Canada and Australia, the allocation of work and the selection of benches is a consultative process, and necessarily involves a culture of trust.

Alternatively, there are clear and defined rules in this regard, as, for example, in the European Court of Human Rights and the European Court of Justice. It is not acceptable for the chief justice to have unbridled power. Even in high courts in India, where a chief justice may have official roles such as presiding over administrative meetings, at no point is the chief justice considered or made to believe that he/she is superior to other judges in the court. The sanctity of this principle cannot be overstated: A former chief justice of the South Korean Supreme Court was recently arrested for having allegedly used his influence when he was in office on behalf of conservative governments to delay trials in war-related compensation cases. Unfortunately, in India, the trend of the CJI assuming the role of master of the roster, with unbridled and unrestricted power, continues even under the present CJI, which may have disturbing implications for the dispensation of justice in our country. Urgent reforms in this regard are necessary.

The second issue is of how appointments to and transfers within the higher judiciary continue to be made. Every time a new cohort of judges is announced for selection, a new set of problems emerges. It is almost as though the Supreme Court Collegium is showing us the many paths to opacity that can exist in the appointments process. Two incidents over the past month have been particularly distressing.

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One relates to a recent proposal to transfer a sitting judge of the Delhi High Court, whose decisions have been attacked by those within or close to the present Union government. While the transfer was not finally approved, it bodes ill for a judiciary that prides itself in being independent of influence and the other arms of the state.

Another case is the inexplicable reversal of a decision of the collegium to elevate two high court chief justices, both well-regarded as fine judges, to the Supreme Court. A “leak”, purportedly from an “official source”, in a leading news publication suggested that this reversal was apparently because certain “adverse material” against these judges had emerged. Ideally, any such material should have been put to these judges in a formal setting, and they ought to have been allowed to defend themselves. Instead, these two judges, along with two others — all high up in the seniority list of high court judges — were bypassed, and relatively junior judges were pushed up the ladder. Unfortunately, such leaks and last-minute reversals can damage the morale of members of the judiciary.

Equally problematic is the overwhelming silence of the government. On an earlier occasion, the same government had staunchly defended the seniority convention in judicial appointments. What happened now? The government, by swiftly approving the latest recommendations, has revealed how hypocritical it, too, can be. This is not to say that I defend the seniority convention. But, at the very least, the government should have been consistent in its position.

I have frequently expressed my views on the workings of the collegium and I believe that the collegium system should go completely. But even if the judiciary is not inclined to revise its position on the appointments process, the present situation could be improved slightly if the Memorandum of Procedure for making judicial appointments were finalised.

More problematically, I worry that not enough attention is being paid to the judiciary as an institution. Ideally, in any democratic set-up, we need the best individuals running the judiciary. In my opinion, one important criterion for selecting judges is merit. But as has been seen, many brilliant judges are overlooked. The appointments of judges on grounds other than merit can be self-perpetuating. Many such appointees will become members of the cabal that is the collegium, and may make the same kinds of choices their seniors made. Short-term decisions to appoint certain individuals affect the long-term condition of the judiciary. We are now in a position where we can predict that the health of the Supreme Court, and the judiciary, will not be in great shape. We should all be very worried.

The third issue that concerns me is the recent fascination of the Supreme Court for the “sealed cover” as a means of receiving information about cases, having used it in three highly-documented litigations in the past few months. This is completely against the idea of open, transparent justice. Unfortunately, our judiciary is not only opaque in its own workings but is also becoming partial to opacity in its public function, as an arbiter of public disputes. Jurisprudence clearly shows that such secretive information should be resorted to only in exceptional cases. But here, it is being asked for in an ad hoc manner without any clear or rational reason. In the National Register of Citizens case, for example, the lives of lakhs of people hinge on sealed covers. Surely, we cannot allow our lives to be adjudicated upon in secrecy.

The fourth issue is about post-retirement appointments. Without meaning any disrespect at all to the judges most recently involved, it is clear that such appointments really compromise the independence of the judiciary. They raise potential conflicts of interest, if not in reality, certainly in matters of perception. Even Arun Jaitley once famously remarked in Parliament that pre-retirement judgments were influenced by post-retirement assignments. Ideally, there should be a policy decision to introduce a cooling-off period after retirement before taking up new appointments. Or such appointments should be made by a neutral body which is free from executive influence. In any case, at the least, such offers of appointments should neither be made nor considered when a judge is still in office.

The fifth issue is that of the appeal made to the Supreme Court by itself against the order of the Delhi High Court on the applicability of the Right to Information Act, 2005, to the judiciary. The Delhi High Court judgment has been stayed, and the case has been languishing in the court for a decade now. Closure on this account is more urgently needed than ever, especially in the context of issues of transparency in the judiciary.

If I were a pessimist, I would say that none of this will ever change. But I am an optimist at heart. The 2018 press conference gave a flicker of hope, even if it did not survive. Maybe things will turn around soon. Many others like me are waiting eagerly for that day.

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The writer is a former chief justice of the Delhi High Court