Subject: Polity

The Supreme Court has lambasted the Centre for withholding names recommended or reiterated by the collegium for judicial appointments, even saying that the government is using silence and inaction as “some sort of a device” to force worthy candidates and prominent lawyers to withdraw their consent.

Why in news?

• The Union Law Minister since few months has launched a relentless attack on the collegium system for lack of transparency.

What exactly is the Collegium System?

• The collegium system was born out of years of friction between the judiciary and the executive.
• The hostility was further accentuated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of HC judges and two supersessions to the office of the CJI in the 1970s.
• The Three Judges cases saw the evolution of the collegium system.

Evolution: The Judges Cases

• First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
• However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
• Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
• It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
• Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

How does the collegium system work?

• The collegium of the CJI and four senior-most judges of the Supreme Court make recommendations for appointments to the apex court and High Courts.
• The collegium can veto the government if the names are sent back by the latter for reconsideration.
• The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.

The procedure followed by the Collegium

Appointment of CJI

• The President of India appoints the CJI and the other SC judges.
• As far as the CJI is concerned, the outgoing CJI recommends his successor.
• In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
• The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

Other SC Judges

• For other judges of the top court, the proposal is initiated by the CJI.
• The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
• The consultees must record their opinions in writing and it should form part of the file.
• The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

For High Courts

• The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
• High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
• The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
• The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Does the Collegium recommend transfers too?

• Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
• Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
• When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
• In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
• However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
• All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

Loopholes in the Collegium system

• Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
• Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
• Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge. It has even been accused of nepotism.

Way ahead

• In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
• The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
• Even the majority of opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.

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The Supreme Court has ordered for the immediate release of six convicts who are serving life sentence for more than three decades in the Rajiv Gandhi assassination case.

What is the news?

• The Bench referred to the case of their former co-convict G. Perarivalan, who was granted premature release by the apex court this year in exercise of its extraordinary powers under Article 142 of the Constitution.

What does Pardon mean?

• A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

Why need a Pardon?

• Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
• Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
• Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

What does Article 161 say?

• Article 161 of the Constitution provides the Governor with the power to remit or commute the sentence of any prisoner.
• The Governor’s decision will be subject to judicial review by the constitutional courts.
• The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161.

Why did the Supreme Court intervene here?

• In its judgment in the Perarivalan case in May, the apex court had held that the State Cabinet’s advice was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution.
• The Governor had no business forwarding the pardon pleas to the President after sitting on it for years together.

Back2Basics: Article 142

• Article 142 provides discretionary power to the Supreme Court.
• It states that the court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
• Such decree shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament.
• It is usually used in cases involving human rights and environmental protection.

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The Supreme Court has suggested a way out of routinely filing documents in sealed covers, especially in cases touching on national security.

What did the apex Court say?

• The court said the government could redact the sensitive portions and show the rest to the petitioners.
• This would address both the state’s concerns about “national security” and the “right to know” of petitioners.

What is Sealed Cover Jurisprudence?

• It is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges.
• A specific law does not define the doctrine of sealed cover.
• The Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.

Nature of the power: Upholding Secrecy

• If the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such information.
• There is an exception to this if the Chief Justice himself orders that the opposite party be allowed to access it.
• It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public.
• As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.

Grounds of such secrecy

Other instances where information may be sought in secrecy or confidence is when its publication:

1. Impedes an ongoing investigation of cases related to national security
2. Details that are part of the police’s case diary or
3. Breaches the privacy of an individual

Prominent cases of sealed jurisprudence

Sealed cover jurisprudence has been frequently employed by courts in the recent past.

(1) Rafale Deal

• In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by CJI Ranjan Gogoi in 2018, had asked the Centre to submit details related to deal’s decision making and pricing in a sealed cover.
• This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

(2) Bhima Koregaon Case

• In the Bhima Koregaon case, in which activists were arrested under the Unlawful Activities Prevention Act.
• The Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

Issues with such jurisprudence

• This practice appears to be unfavorable to the principles of transparency and accountability of the Indian justice system.
• It stands in contrast to the idea of an open court, where decisions can be subjected to public scrutiny.
• It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down the reasoning for their decisions.
• Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.

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