Inadequate disclosure

Transparency needs more than online posts on judges' appointments

At first glance, the Supreme Court collegium’s declaration that it will post online the reasons for appointing a judge or rejecting an appointment is an admirable move. The devil, however, lies in the detail — that is, the level of disclosure the apex court is prepared to offer. Would an explanatory note go far enough towards improving accountability and transparency at the highest levels of the judiciary? It is significant that this suo motu move comes soon after the controversy following the resignation of Justice Jayant Patel, the second most senior judge of the Karnataka High Court, with a chance of becoming its chief justice, after his transfer to the Allahabad High Court, where he would have been third in seniority. The transfer, announced late last month, prompted a strike by the Karnataka Bar Association and focused attention afresh on the apex court’s opaque appointment procedures. 

These have been in the eye of public discourse, especially after the Supreme Court struck down, in 2015, the National Judicial Appointments Commission (NJAC) Act that would have replaced the collegium, a system that has been in place since 1998 even though it has no constitutional backing. The transfer of Justice Patel, a highly respected judge, attracted attention because it had additional implications. This would have been his second transfer. In 2016, he was transferred out of the Gujarat High Court. Then, as now, no reasons were offered but the media did not miss the fact that Justice Patel had, in 2011, ordered the Central Bureau of Investigation to investigate the Ishrat Jahan killing, which embarrassed the state government, then led by Narendra Modi. 

Stating reasons for a transfer is good practice, but doing so will only reveal the final result of the four-judge collegium’s discussions. It would be irrational to believe that the final decision on any appointment represents a unanimous one, that there is no dissent or even a modicum of disagreement. To strengthen public confidence in this process and make it more meaningful, the apex court will have to do better — that is, go the distance and publish the minutes of these deliberations. That will enable civil society (and, indeed, the judge concerned) to gain a better understanding of the thought processes that went into a particular decision and, importantly, how it serves the public interest. 

This level of disclosure becomes all the more pertinent since the proximate reason the Supreme Court rejected the NJAC Act was on the grounds that judicial independence would be compromised by the inclusion of members of the executive branch of government. The NJAC was to have consisted of the chief justice of India, two senior-most Supreme Court judges, the law minister and two “eminent persons”. The last two would serve a three-year term and be appointed by a committee comprising the prime minister, the leader of the Opposition and the chief justice. The NJAC had its weaknesses, no doubt, but the collegium — which the Centre once criticised as being an “empire within an empire”, though the secret conclave that chooses a Pope will be a better analogy — can hardly be considered a preferred alternative unless it subjects itself to greater transparency.