Madras High Court controversy underlines the need for greater transparency in judicial appointments.
The Supreme Court’s proposal to create a “forum to address the grievances of lawyers” on judicial appointments is a small step towards greater transparency in the functioning of the collegiums. The recent controversy surrounding the nomination of judges to the Madras High Court — which prompted the SC’s proposal — threatens to undermine public trust in the higher judiciary unless the apex court makes systemic changes to the selection process.
The collegium system — a creation of the SC itself — comprises the chief justice and the senior-most judges of a high court or the SC and is not answerable to any constitutional functionary for its decisions. A judicial appointments commission is in the works, but it is unclear when Parliament will legislate it into existence by way of a constitutional amendment. The proposed commission, which would replace the collegiums, would still have some discretion in the appointment process.
Meanwhile, till the commission is institutionalised, the apex court should nudge the appointments process towards greater transparency. The SC could prescribe eligibility criteria for selection to the higher judiciary, beyond the basic requirements in the Constitution. It could exhort high courts to make the shortlist of candidates public. The SC could disclose why it has chosen to nominate judges from the short list to the Union government.
The appointment process should also take on board diversity concerns. Higher courts will indeed invite criticism upon disclosing the rationale behind judicial appointments but that would arguably be a small price to pay to shore up public confidence in the judiciary while retaining its independence.
