The Collegium is "a victim of its own birth pangs", Justice D Y Chandrachud of the Supreme Court said on Wednesday while batting for disclosure of information on appointment of judges to higher judiciary.
Justice Chandrachud, who was part of a five-judge Constitution bench headed by Chief Justice Ranjan Gogoi which held that office of the Chief Justice of India is a public authority and falls within the ambit of the Right to Information (RTI) Act, said that judicial independence entails the ability of judges to adjudicate and decide cases without the fear of retribution.
In a separate but concurring 113-page verdict, he said judicial independence and ability of judges to apply law freely is crucial to the rule of law.
Batting for disclosure of information on appointment of Judges, Justice Chandrachud said, "In significant respects, the collegium is a victim of its own birth pangs.
"Bereft of information pertaining to both the criteria governing the selection and appointment of judges to the higher judiciary and the application of those criteria in individual cases, citizens have engaged the constitutional right to information, facilitated by the RTI Act," he said.
"Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments," he said.
He said there can be no denial that there is a vital element of public interest in knowing about norms which are taken into consideration in selecting candidates for higher judiciary and making judicial appointments.
"Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the collegium system postulates that proposals for appointment of judges are initiated by the judges themselves," he said.
Justice Chandrachud held that information regarding assets of Supreme Court judges does not constitute the 'personal information' of the judges and does not engage the right to privacy.
He said contents of declaration of assets would fall within the meaning of 'personal information' and the test set out under clauses of RTI Act would be applicable.
He said the substantive standards with regard to appointment of judges to higher judiciary, which are borne in mind "must be formulated and placed in the public realm as a measure that would promote confidence in the appointments process".
"Due publicity to the norms which have been formulated and are applied would foster a degree of transparency and promote accountability in decision making at all levels within the judiciary and the government," he said.
Highlighting that norms may also spell out the criteria followed for assessing the judges of district judiciary for higher judicial office, Justice Chandrachud said that there is a "vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office particularly having regard to merit, integrity and judicial performance".
He said that placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of provisions of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process.
He said that broadly speaking, judicial independence entails the ability of judges to adjudicate and decide cases without the fear of retribution.
"The edifice of judicial independence is built on the constitutional safeguards to guard against interference by the legislature and the executive. Judicial independence is not secured by the secrecy of cloistered halls. It cannot be said that increasing transparency would threaten judicial independence," he added.
Referring to collegium system Justice Chandrachud said it has come under immense criticism for its lack of transparency.
"The integrity, independence, and impartiality of the judiciary are preconditions for fair and effective access to justice and for the protection of rights. The judiciary has a vital role to play as a bulwark of the integrity infrastructure in the country," he said.
He highlighted that the failure to bring about accountability reforms would erode trust in the courts' impartiality, harming core judicial functions.
"Further, it also harms the broader accountability function that the judiciary is entrusted with in democratic systems including upholding citizens' rights and sanctioning representatives of other branches when they act in contravention of the law. Transparency and the right to information are crucially linked to the rule of law itself," he said.
Dealing with accountability, he said that to be independent a judge must have the ability to decide without fear or favour, affection or ill will.
"For true judicial independence is not a shield to protect wrong doing but an instrument to secure the fulfilment of those constitutional values which an independent judiciary is tasked to achieve," he said.