[op-ed snap]Open up the Supreme Court

Mains : Executive & Judiciary |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Why Transparency is required in Judicial Appointments


CONTEXT

The basic question, i.e. whether or not the Office of the CJI is subject to the RTI Act, has been on the forefront for some time due to an ongoing case.

Background

  • Almost 10 years ago, on September 2, 2009, the High Court of Delhi handed down a landmark judgment dealing with the fledgling Right to Information (RTI) Act. It held that the Office of the Chief Justice of India (CJI) was a “public authority”, and therefore, subject to the provisions of the Act.
  • Information held by the CJI — including, in the context of the case, information about judges’ assets — could be requested by the public through an RTI application.
  • In ringing words, Justice Ravindra Bhat declared that the RTI was a “powerful beacon, which illuminates unlit corners of state activity, and those of public authorities which impact citizens’ daily lives, to which they previously had no access”.
  • Earlier this month, however, a five-judge Bench of the court finally heard the case on merits, and reserved judgment.

Arguments Supporting that CJI should be under RTI

  • The basic question, i.e. whether or not the Office of the CJI is subject to the RTI Act, has an easy answer: yes.
  • As Justice Bhat correctly observed in the High Court judgment, “all power — judicial power being no exception — is held accountable in a modern Constitution”.
  • A blanket judicial exemption from the RTI Act would defeat the basic idea of “open justice”: t
  • the workings of the courts, as powerful organs of state, have to be as transparent and open to public scrutiny as any other body.
  • Nor would bringing the judiciary under the RTI Act destroy the personal privacy of judges: as the High Court judgment noted, the RTI Act itself has an inbuilt privacy-oriented protection, which authorises withholding the disclosure of personal information unless there is an overriding public interest.
  • While disclosure of assets is arguably justified by an overriding public interest, medical details or information about marital status, for example, are clearly not.

Issue of collegium

  • The Collegium includes the five senior-most judges of the Supreme Court, who collectively constitute the selection panel for judicial appointments to the Supreme Court (and the three senior-most judges when it comes to the High Courts). I
  • India is one of the few countries where judges have the last word on judicial appointments, through the mechanism of the Collegium.
  • The Collegium itself is not mentioned in the text of the Constitution: it arose out of a judgment of the Supreme Court, and in response to increased executive interference in judicial appointments, particularly during Indira Gandhi’s regime.

Criticism of Collegium

  • A major point of critique was its opacity: it was increasingly being perceived that judicial appointments were too often made in an ad hoc and arbitrary manner.
  • The nomination process is secret, the deliberations are secret, the reasons for elevation or non-elevation are secret.
  • Indeed, the Supreme Court’s own NJAC judgment acknowledged this critique, and vowed to evolve a system where concerns of transparency were addressed.
  • A small step towards this was made during Dipak Misra’s tenure as CJI, when the resolutions of the Collegium began to be published online.

Arguments fo attorney general regarding Collegium’s secrecy

The AG argued that disclosing the correspondence of the Collegium would “destroy” judicial independence.

Examples elsewhere

  • Indeed, a look at judicial appointments elsewhere suggests that transparency in appointments is integral to the process.
  • In the United States, for example, candidates for judicial appointments in the federal judiciary are subjected to public confirmation hearings by the Senate.
  • In Kenya and South Africa, the interviews of candidates taken by judicial appointments commissions are broadcast live.
  • The public, thus, is in a position to judge for itself the selection process. This is crucial to maintaining public faith in the impartiality of the institution.

Way Forward

  • “Sunlight is the best disinfectant” is a trite and overused phrase.
  • In the context of public scrutiny of the Supreme Court, however, it is an apt one.
  • The Collegium’s recent decisions to recommend a set of names for elevation, and then hastily backtrack on them without any publicly stated reasons, dealt a serious blow to its reputation for impartiality and independence.
  • The only way to salvage this is to open up the court.
  • A judiciary that is confident of itself and of its place in the democratic republic should not be worried about subjecting judicial appointments to public scrutiny.
  • The occasional discomfort that might come from the harsh public glare is more than outweighed by the cleansing value of transparency.
RTI – CIC, RTI Backlog, etc.
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