The Supreme Court Collegium in the coming future decided to make most of its decisions
concerning judicial appointments public. The Collegium would provide justifications for any
subsequent decisions or resolutions.
The decision to make judicial selections public was positively welcomed by the general public, particularly lawyers and activists, who demanded more transparency and accountability in the recruitment / appointment of court judges. To increase the efficiency of the Indian judiciary, comprehensive
judicial reforms are urgently needed.
Demand for transparency about judicial appointments had been called long back, the
tussle between the judiciary and the executive, which especially came into the limelight during the three judges’ case,
1.S. P. Gupta v. Union of India - 1981(also known as the Judges' Transfer case)
2.Supreme Court Advocates-on Record Association vs Union of India - 1993
3.In re Special Reference 1 of 1998
The question now is
If this decision of the collegium to make its decisions public is implemented, What about the effect on the judges whose candidature has been rejected?
In the case of rejected candidates, some arrangements for compensation can be made,
but the system has the authority to withhold the reasons for rejection. But perhaps, there is no legal obligation to do so because compensation would place an added strain on the judiciary.
Does the decision of the collegium to make judicial appointments public would lead to further judicial transparency?
Judicial independence is not secured by the secrecy of cloistered halls. It cannot be said that increasing transparency would threaten judicial independence. The need for greater transparency and accountability in the appointment procedure or the lack of the same,
has been highlighted by other eminent retired Judges such as Justice J. S. Verma & Justice
Rama pal in Supreme Court Advocates-on-Record Association v Union of India (NJAC), 2016 5 SCC 1.
The Collegium's decision appears to imply that there was pressure and backlash as a result of the judicial appointments' credibility and accountability with regard to the exercise of
extra-constitutional powers given to the collegium, and this is true to some extent, as the
Collegium has been repeatedly attacked for mishandling, and this action is helpful in
resorting to the positive image. The key emphasis must be on making public the criteria for
making appointment recommendations, which should be strictly objective.
Was the collegium’s decision to make its decisions public a right step?
What must be emphasised is that the substantive standards that should be taken into
account defined and publicly disclosed as a step to build trust in the nomination process. Due public awareness of the norms, that have been designed and implemented, will encourage transparency and accountability in decision-making at all tiers of the judiciary and government.
Certain procedures are essential if the content on the right and the enforcement of the statute are to have a significant dimension in their application to the judiciary – as they must. The most essential of them is that the criteria for selecting and appointing judges to the higher judiciary must be specified and made public. This isn't just the mechanism for making judicial appointments, but also the substantive norms that are to be followed.
Did the Supreme Court Collegium took this decision under pressure? And Is this decision taken to protect the image or status of the collegium system?
This decision was made in needed to shield the status quo, which had been threatened due to opacity. To build a clear image, the emphasis should be made on explaining the grounds for selection, such that the stated reasons will be held relevant even if there are no criteria.
There is also a need for an institutionalised system with clearly defined criteria and procedures, as well as the announcement of selected candidates backed by input from the Bar Council of India and state bar council, to help make a better and more informed selection. Though it is stated that the Supreme Court is open to criticism, it is frequently observed that the Supreme Court, carrying in its hands, the authority to use contempt of court to silence such critiques. However, this could become a whole new discussion. And the government, the, the judiciary, and the general public now have the option of accepting or rejecting such a system.
“An absolute close house has now opened few windows”
-Justice R.S. Sodhi, Former Judge, Delhi High Court
Since the debate between the collegium system and NJAC is now a closed chapter, do we need a new system to be introduced?
It has been argued that criteria are well-known; attributes such as skill, ingenuity, suitable
temperament, and so on are required to give justice; nonetheless, these qualities are subjective to some extent.
Furthermore, the panel stated that transparency is an ideal solution for zero rumour, but that
some secrecy must be maintained in order for proper reasonings to be mentioned without
undue influence from any sort of pressure; as for a new system, it was stated that there is no
need to introduce one, only a few more positive modifications to the existing one.
Judicial reforms- where to start and what all is needed?
The Collegium method is considered as practical, as it encourages independence. If one
takes as an objective viewpoint, one can learn about a judge's merit, positive features, and attributes.
For instance, if a judge delivers a positive report on one case, but a negative one on
another this remark is considered subjective. Objective standards, or objective recommendations are very much essential and required, as well as a thorough technique for removing subjective aspects and prejudice.
Along with this, an academic method is needed, which includes assessing judges' abilities,
while dealing with various judicial hurdles and challenges, ingenuity while obeying the rule of law to deliver justice, and so on. Perhaps there should also be courses to assist judges in
developing the abilities necessary to be competent candidates for judicial selection.
The existence of conditions that allow a judge to make objective judgements without being
persuaded by demands and considerations that interfere with the administration of justice is
referred to as judicial independence. A judge must be able to make judgements "without fear Or favour, affection or malice" in order to be truly neutral. By creating provisions for judicial appointments, tenure, and conditions of service, the Constitution sets the circumstances for Judicial Independence.
Also, the panel further mentioned that NJAC would have been a far superior system, but it
was rejected even before it was tried. Collegium system, which was a judge produced
law or court invention, was not substantive, but an abstract judicial review. Certainly these
extra-constitutional powers will be significantly misused, as all power is entrusted to one single organ of government. There is no common word between the government and the collegium with this we understand that it regards to this matter, and it was further asserted that the government is attempting to achieve its political goals which were unable to be achieved through NJAC. Therefore, between the executive and the judiciary, there's often a squabble.
Referring to observations made in the NJAC judgement, Justice Chandrachud observed that,though the dilution of the judiciary's autonomy in the context of making judicial appointments was deemed to be unconstitutional, but the need for transparency in judicial appointments has not been denied and has in fact been specifically acknowledged by some of the learned Judges.
The judge added that failure to bring about accountability reforms would erode trust in the
courts' impartiality, harming core judicial functions. Transparency and the Right To Info
are crucially linked to the rule of law itself, the judge said.
What is the biggest challenge the Indian judiciary is facing today?
One of the biggest challenges for the Indian judiciary, as stated by the panel, is credibility. The Judiciary is an essential organ of the Indian government, and it plays a crucial part in the countries proper functioning as a democracy centred on the rule of law. The judiciary's
Independence transparency, and impartiality are prerequisites for fair and effective access to Justice and protection of rights. As a bulwark of the country's moral infrastructure, the judiciary plays a critical role.
“The faith of the commons in the judiciary should not be shaken in any circumstances”
Failure to implement accountability measures will impair essential judicial functions by
eroding the trust in the courts' impartiality. Furthermore, it jeopardises the judiciary's
border accountability function in democratic institutions, which includes preserving citizens'
rights and penalising officials from other branches who break the law. The Rule of Law
is related to transparency and the right to knowledge.
Is there adequate government participation in the needed judicial reforms?
As noted by one of the critics , the government should intervene minimally or not at all in
judicial reforms, as it is deemed independent, therefore the onus falls on the collegium rather than on the government. Furthermore, transparency cannot be completely infinite in
all circumstances, as some discretion is required for successful decision-making
Do we need systemic change?
There is a need for an academic approach, which urgently requires several academicians to come forward and provide impact assessments or critical appraisal of the judgments on the general public, such as those provided by law journals, legal books, and there should also be provisions for research on the necessary legal feedbacks offered by different judges and their research on the specialised subject where this study focuses. As a result, it is high time for the academic community to step forward and see themselves as a crucial component of this system..
Need for judicial infrastructure?
Even though government funds are available, many courts still require attention, since they
are not appropriately allocated. In addition, computerised equipment’s are required in the
court for efficient working.
Supreme Court judge, Justice N.V. Ramana called for the need to establish a National
judicial Infrastructure Corporation to drastically improve judicial infrastructure across the country.
According to him, the corporation could bring the much-needed “uniformity and standardisation” which could “revolutionise” judicial infrastructure.
Replying to criticism, that money is spent on the infrastructure of higher courts while the
subordinate judiciary continues to function from stuffy, ill-lit and dingy courtrooms without
basic facilities for litigants, court staffers and judicial officers.
“There is a need for the Centre and States to cooperate and create a National Judicial
Infrastructure Corporation, as a one-time measure, to cater to the need for judicial infrastructure.
Such a corporation would bring the uniformity and standardisation which is required to
revolutionise judicial infrastructure,” Justice Ramana said in his address at the inauguration
of a new Bombay High Court building in Goa.
The modernisation of judicial “infrastructure does not mean building more courts or filling
up vacancies or ploughing through vacancies”, he said. An efficient “judicial infrastructure”
means providing equal and free access to justice. This could be realised through a “barrier free and citizen friendly environment”, Justice Ramana Quoted that
“We can assert true accessibility when the person with the maximum disadvantage can
still knock on the doors of the court of justice,” Justice Ramana said
What’s the way forward as far as the judiciary is concerned?
Positive improvements and their nature should be welcomed by the judiciary, and they should be implemented as soon as possible. The judiciary must shake off the poor image it has cultivated over the years, which has included countless backlashes, accusations, and increased pressure from the general public and political parties. The Indian judiciary should make every effort to protect its independence, and judges too appear to be equally concerned with the appointment of qualified judges to high courts and the Supreme Court.
The objective is to dispense justice in a fair and unbiased manner, they should be devoid of any entrenched interest.
True judicial independence is an instrument to ensure the fulfilment of the fundamental ideals that an independent court is entrusted to attain, not a shield to protect wrongdoing. As a result, judicial independence is not a licence to act irrationally. Where the Constitution establishes a requirement of judicial independence for free and impartial adjudication, the independence granted by the Constitution must be used to advance the goal for which it was established.
Judicial independence and judicial accountability merge in the quest for a balance
between the freedom given and the responsibility that comes with that freedom.
This article is written by Siddarth Iyer of Vivekaanand Education Society of Law.