How Much Sunlight? Debating Collegium Transparency | Column By Sr Adv Sanjoy Ghose

Recently, the statements issued by India’s Supreme Court disclosed extracts of Intelligence Reports forwarded by the Government to the Collegium to substantiate its veto on certain candidates recommended for judicial appointment. The Law Minister responded by voicing an alarm about the sensitivity of the intelligence shared.

This has again brought to the centre stage the issue of transparency and accountability in matters of judicial appointment, something which the executive claimed, was the driving force behind the NJAC constitutional amendment!

The episode culminating in the dramatic court proceedings which had commenced in the Top Court five minutes prior to the swearing in of Justice Victoria Gowri has also flagged the growing public demand for transparency in judicial appointments. The Chief Justice, as per news reports, indicated that perhaps the collegium was unaware of Gowri J’s controversial social media adventures. Yet Khanna J, hearing the ‘early’ morning challenge, expressed a view during the hearing to the effect that it could not be assumed that the collegium was innocent of Gowri J’s media posts.

So it is time we ask ourselves: should the high court collegium publish the list of candidates being considered by it in advance and perhaps even invite responses from the Bar? Would such a course ensure greater transparency or encourage unnecessary character assassination and targeted sabotage? Would it detract competent lawyers from agreeing to be considered for judicial office?

Where should we peg India’s model for transparency in judicial appointments? We have before us the precedent of America’s Senatorial Confirmation of the judicial appointments. The grilling by the Senate Judiciary Committee is televised live for all to see! At the other end of the spectrum is the election of the Pope, shrouded in secrecy, where the Electoral College of Cardinals is locked up in the Sistine Chapel and the doors sealed. Only the white and the black smoke are the indicators of the process and all are sworn to secrecy till death.

The exercise of publishing minutes of the Supreme Court collegium meetings began with Chief Justice Deepak Mishra. You will recall, that Justice Chelameswar, who had penned the dissent in the NJAC Case, was not inclined to participate in collegium meetings shrouded in secrecy. While he would perhaps have liked more transparency, his lordship settled for a compromise- minutes would be published. We do know now how farcical the process eventually turned out to be leading the Court to ultimately discontinue with it.

At one of the usual retirement related functions, Justice Kurian Joseph was asked ‘why the collegium did not disclose detailed reasons for rejecting the name of a candidate for appointment as a judge of the High Court?’ I was attending the function and his answer was very telling!

What the minutes would record would be the fact of accepting or rejecting the candidature of a potential judge. The reasons would not be shared. So, say a lawyer with a decent practice or reputation at the Bar, who may have been persuaded to give her consent for elevation would simply find herself signing up for a process of public humiliation if her name did not pass muster with the Collegium. The minutes recording her rejection would be in the public domain forever scarring her reputation. What is worse is that, unlike a judicial verdict where an affected party has a right to know the case against her, the right to represent against such cause and the right to a reasoned order-the palace intrigue based secretive collegium system offered her none of the three. Why would then any self-respecting lawyer with a decent practice even consent to this process and should that happen who would be the ultimate loser-the judiciary or that individual?

While Justice Joseph’s response noted all these points, his view was that if reasons for rejection were recorded it would only make matters worse and aggravate the humiliation! While a lawyer whose elevation is rejected, say, for sharing an article criticising the Prime Minister could share such a publicly recorded rejection as a badge of honour, it would not be that easy should the rejection be for something less frivolous like, say, alleged doubtful financial integrity. In such an event, would it be fair to disclose the reason publicly when the candidate has not even been given a chance to repel such allegations?

This would be even more pernicious given that historically, agencies entrusted with vetting the background of candidates take their task very casually. In fact, often the intelligence collected is anecdotal based on selective feedback from the Bar. Once a certain Delhi High Court judge found his elevation delayed as the IB reported that he was known to be an alcoholic. He was lucky that judges knew that he was, in fact, the contrary-a teetotaler. Further inquiries revealed that it was precisely on the score that his lawyer friends had given him the nickname-Boozer! The rest is history. Apart from such unreliability, there are also whispers in Court Corridors that vetting agencies are often not as independent and professional as we would like them to be.

In this context the recent public confrontation between the two wings of government on the issue of judicial appointments assumes relevance. The facts are too well known. The reasons in the IB report stating that one candidate had shared on social media an article critical of the Prime Minister and another candidate was living an openly gay life with a Swiss national were made public by the Court while rejecting the same and reiterating these proposals. The Law Minister, as I have said, has responded sharing his grave concern about putting out in the public domain extracts of confidential reports of agencies. Well the facts put out by the Court, certainly do not imperil national security. If at all, it encourages our agencies to be more professional and resist the temptation to serve as stooges of the executive.

That having been said, all this public conflict does not bode well for the nation. It establishes that the NJAC debate did not end with the 4:1 decision in favour of the Court. Both sides have to show sagacity and wisdom-neither is a Saint. The issue is not only who shall have primacy but how much transparency is acceptable. While the brutal American system of public hearings by the Senate Judiciary Committee may be too much for us, the present secrecy of the Collegium system is equally undesirable. However, as I have highlighted from Kurian J’s response, we have to tread carefully on this road to transparency. It should not be that in our zeal we completely put off competent lawyers from giving their consent to accept judicial office for fear of a public humiliation memorialised for eternity in the digital graveyard!

Gandhi’s talisman was “when in self -doubt about your action, think of the poorest person and how your action will impact upon her”. For you Mr Chief Justice and Mr Law Minister it is-think of the litigant waiting for years in courts for justice!

(Sanjoy Ghose is a Senior Advocate practising at the Supreme Court and Delhi High Court. He tweets at @advsanjoy)