A judiciary which considers the rule of law a part of its basic structure must abandon the culture of secrecy that envelops the present appointment process

The question of judicial appointments has reached centre stage. The new government has started a process of consultation in relation to two Bills — the Constitution Amendment Bill and the Judicial Appointments Commission Bill. The bills were an attempt by the previous government to take over judicial appointments. First, the composition of the Judicial Appointments Commission (JAC) can be modified by Parliament by ordinary law. Second, the independence and impartiality of the proposed JAC will be undermined by the JAC Secretariat being made a department of government. Third, the expenses and salaries, etc of the JAC would not be charged to the Consolidated Fund of India and will be dependent on budgetary control by the Executive.

The Supreme Court and the High courts have their independent registries, where appointments are made by or at the direction of Chief Justices (Article 146 and Article 229 respectively), ensuring total freedom from political interference and political domination.

The Constitution Amendment Bill was in the public domain only for a few days, notwithstanding demands by stakeholders for an early disclosure. After a very brief debate on September 5, 2013, the Constitution (120th Amendment) Bill (later corrected as 99th Amendment Bill) was passed by the Rajya Sabha after the Bharatiya Janata Party (BJP) walked out. The BJP’s demand was that the Parliamentary Standing Committee should examine both the Bills together. Then BJP MP (and now the Union Minister for Law and Justice), Ravi Shankar Prasad is reported to have said in the Rajya Sabha: “Home work was not done. We were misled into passing it … The Minister [Kapil Sibal] has committed a mistake, he should feel sorry for his act. Law minister should apologise to the House. He must apologise, anguish would not do.”

There is a broad perception among most stakeholders that the present collegium system has not performed well and needs radical change. The worrying concerns relate to: appointment of unsuitable candidates and selection based on favouritism and nepotism, influential connections and personal likes and dislikes. There appears to be a consensus that the composition of the proposed JAC should be entrenched in the Constitution and cast in stone and that the pre-1993 position and the primacy of the Executive should not be restored — a view shared by two Ministers involved in the recent consultation process.

The debate raises many important questions — whether the JAC should be a permanent body with permanent members and a fixed tenure, rather than one with ex officio holders of judicial office who are all birds of passage with a limited tenure; whether the convention that the senior-most Supreme Court Judge be appointed Chief Justice of India (CJI) should be disregarded; whether the judiciary should have a dominant voice, and whether there should be a veto for dissenting members against the judicial members.

The two Bills being debated do not address the issue of a lack of transparency in the appointment procedure and of non-disclosure of reasons for selection.

The focus of this article is only on openness and transparency in the appointment procedure and on the necessity of providing relevant principles and guidelines in the Constitutional Amendment Bill.

All democracies are swiftly moving toward an open government and a citizen’s right to know — an international trend increasingly being supported by judicial decisions.

Further, the right to know is part of the freedom of speech and expression and the present secretive system, as implemented by the collegium, violates this fundamental right.

The principle of open justice and public trial is essential for the fair administration of justice. In the celebrated case of Scott v. Scott, observations by the 19th century philosopher Jeremy Bentham were quoted: “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the judge himself while trying under trial.” and “The security of securities is publicity.”

Our Supreme Court cited, with approval, this passage in the Naresh Sridhar Mirajkar case and added that “… a trial held, subject to the public scrutiny and gaze, naturally acts as a check against judicial caprice or vagaries …”

The distinguished former president of the Supreme Court of Israel, Aharon Barak, in his book, The Judge in a Democracy, observed: “… But we are judges. We demand that others act according to the law. This is also the demand that we make of ourselves ....”

“I view my office as a mission. Judging is not a job. It is a way of life. Whenever I enter the courtroom, I do so with the deep sense that, as I sit at trial, I stand on trial.”

Justice Sabyasachi Mukherjee, during the controversy regarding the impeachment of Justice V. Ramaswami, stated: “… The Supreme Court must uphold the rule of law. It is, therefore, necessary that those who uphold the rule of law must live by law and Judges must, therefore, be obliged to live according to law ….”

Why should this salutary principle not apply to the process of judicial appointments? “In camera” trials are ordered where the parties and witnesses require protection or a fair trial is prejudiced. In the functioning of the JAC or any other machinery for judicial appointments, no litigating parties are involved and the potential candidates who voluntarily participate must agree to an open and transparent process.

The present secretive process followed by the collegium excludes public scrutiny, violates the citizen’s right to know and leads to diminishing respect for the judiciary.

The observations in the First Judges Case ( S.P. Gupta vs. Union Of India), which have not been overruled at this point, support the concept of openness. Bhagwati J. — with whom five judges agreed — while overruling the claim of privilege for non-disclosure of communications relating to appointments and transfers of judges, observed: “The citizens’ right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in different parts of the world.”

He further observed: “Now, if the secrecy were to be observed in the functioning of government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability.”

“We believe in an open government and openness in government does not mean openness merely in the functioning of the executive arms of the state. The same openness must characterise the functioning of the judicial apparatus including judicial appointments and transfers.”

To ensure openness and transparency, the proposed constitutional amendment must embody some key principles and core concepts for guidance and implementation by the JAC. These would include: transparent criteria for eligibility as well as for shortlisting and selection (like age, standing, income, etc); a complete and periodically updated database of potential candidates that includes their qualification, performance, general reputation, etc and which is accessible to the public; applications to be invited by nomination/advertisement; consultation with members of the Bar and Bar organisations; inputs sought from the public with regard to shortlisted candidates; absolute immunity to citizens, while giving their inputs in a confidential manner, from laws of contempt and defamation; reasons for selection to be recorded and disclosed when required, and, most importantly, a complete record of video/audio of JAC deliberations.

In sum, one does not want a differently constituted appointing authority operating in secrecy.

Lord Steyn in the House of Lords observed: “The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny … Informed public debate is necessary about all such matters … It promotes the value of the rule of law.”

Surely, a judiciary which considers the rule of law a part of its basic structure must abandon the culture of secrecy that envelops the present appointment process.

(Anil B. Divan is president, Bar Association of India.)