three former CJIs

Justice J Chelameswar’s unprecedented decision to stay away from collegium meetings

collegium

NEW DELHI: Transparency and consensus are needed in the Supreme Court collegium proceedings for selecting judges,have said in support ofDuring their tenure as CJIs, they had never faced a problem in achieving consensus among members of the collegium, they said.Each believed in free and frank discussion on merits and demerits of a person in the zone of consideration and they said names were recommended only when there was a consensus. Justice Sathasivam , now governor of Kerala, told TOI that transparency as well as consensus are two crucial aspects of any selection process, more so when persons are selected for appointment as judges of the Supreme Court or the high courts.Justice Lodha said smooth functioning of thedepends on two crucial aspects — the head of the institution (CJI) and the attempt to find consensus. “It takes time to find consensus. Before placing a name before the collegium, adequate material on antecedents, merit and capability of the person must be collected from every possible source. There should be free and frank exchange of views. If consensus eludes a particular name, it should not be recommended on the basis of majority,” he said.Reflecting on Justice Chelameswar’s opacity charge against collegium, Justices Sathasivam and Lodha favoured recording of views of the collegium members on names considered for appointment of judges to improve transparency. Justice Lodha said: “The views of members of the collegium were not recorded earlier because every member trusted the other. They had trust in each other. With passage of time and with all that is happening around, transparency is the need of the hour.” Justice Balakrishnan agreed that there should be transparency and consensus among the collegium members prior to recommending a person for appointment. But he was against recording of collegium members’ views on a person in the zone of consideration.“Overwhelming majority of the persons considered for appointment to the Supreme Court are all chief justices of high courts. Members of the collegium may have an adverse view on a CJ of the HC and he is entitled to express it in the collegium meeting. But to record it is to give credence to a view as gospel. Moreover, if these records get leaked, the person officiating as HC CJ would find himself in a piquant situation.How can the views of collegium members expressing an unverified charge against a sitting CJ be recorded without giving the latter a chance to rebut? This will also be against principles of natural justice,” Justice Balakrishnan said.Justice Balakrishnan said: “The collegium is not a departmental promotion committee to record every charge against a person. Collegium is a body comprising senior-most Supreme Court judges who are responsible persons. If there is no consensus on a name, that person should never be recommended for appointment.”But Justices Sathasivam and Lodha differed with Justice Balakrishnan on recording the meetings. “Transparency is important for the health of a system, be it collegium or any other selection process. Hence, recording views of collegium members is essential. Views of each member on a particular name in zone of consideration must be recorded and should form part of the record sent to the government along with the recommendation,” Justice Sathasivam said. “However, consensus on a name recommended for appointment as judge is more important than transparency.If there is a single valid dissent to a name, that person should not be recommended for appointment as a judge,” he added.