India's judicial appointments process has been the focus of a long struggle between the executive and the judiciary. But it is clear that neither of these institutions is monolithic in their opinions. In particular, not every senior judge is happy with the process of appointments in senior judiciary as it stands. Justice Chelameshwar, a member of the collegium, recently refused to attend its meetings, protesting that nothing there was recorded. The judge wrote to Chief Justice T S Thakur asking instead that the opinions of his fellow members of the collegium be sent to him "by circulation", which, in effect, would force their views to be recorded on paper. Justice Chelameshwar has never hidden his doubts about the collegium process. But other senior judges seem to agree to an extent with his views. Recently, the former Chief Justice of India, R M Lodha, said as much, and he was a stout defender of the existing system of appointments when he was in office.
There is no question that the appointment process for the senior judiciary should be made more transparent. At the very least, this may well require a record of the collegium meetings. There should be proper documentation available on each candidate so that the judges in the collegium have sufficient amount of information. The background work required to process a candidate's track record should also have been done. Certainly, there are limits to transparency, as with any of the background work done before an appointment. Rumours and accusations should not be spread through the appointments process. The particular danger in this case is that, since the collegium is examining the track records of sitting, senior judges, complete transparency, including publicly sharing the record of every statement made about them in the collegium, might render these judges' positions untenable. That, naturally, is something which must be avoided. But, equally, complete opacity is no longer an option. A via media must be found.
Greater transparency in the judicial appointments process is overdue. Enough senior judges have spoken out against the current process for the public to gain an understanding of its limits. Justice Lodha also mentioned, obliquely, that "people" might seek to take advantage of this division of opinion among judges. Some interpret this as a warning that the executive might take advantage of the situation since it is in the midst of negotiating a memorandum of procedure with the judiciary that will determine how future judges are appointed. Incidentally, the memorandum of procedure available on the Department of Justice website repeatedly stresses on consultations and communication, in this regard, being reduced to writing. But this latest call for reform is not being forced by the executive; it has come from a senior judge who is himself a member of the collegium. So it makes sense for the judiciary to come together on its own and recognise that there are genuine and reasonable concerns to be expressed with regard to the lack of accountability and transparency in the current appointments process. It would be best for all concerned if the judges themselves initiated the reform of the appointments mechanism. The core interests of the judicial system would be safeguarded in that case.
