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Selecting judges: RTI Act provides recipe for transparency in SC Collegium

By Venkatesh Nayak*
In a novel step the Supreme Court of India has created a space for people to give their ideas and views about what needs to be done to reform the manner of working of the Collegium system which has been in existence for several decades. The Collegium comprising of the senior most judges of the Apex Court is responsible for identifying candidates from the Bar and the Bench for elevation as judges of the High Court and the Supreme Court. Earlier, the Apex Court thwarted the National Democratic Alliance (NDA) Government’s attempts to replace the Collegium by setting up a National Judicial Appointments Commission (NJAC). The NDA Government not only pushed through a law for setting up this Commission in Parliament but also got the Constitution amended to enable the establishment of this body. The Apex Court struck down both laws holding them unconstitutional. There are several comments from experts in the public domain both welcoming the judgement or being critical about the approach taken by the Court in arriving at its opinion.

Suggestions regarding the Collegium invited under four categories

With the striking down of the NJAC Act and the related Constitutional Amendment (99th Act), what survives is the Collegium system. Acknowledging the fact that this system has its weaknesses, the Apex Court decided to hear a select group of senior advocates and the Bar Council/Associations regarding suggestions to improve the Collegium system. However the furore in Court raised by lawyers who had not received such preferential treatment, opened up the consultation process. During its hearing on the matter on November 5, 2015, the Apex Court agreed to open up the consultation process to give an opportunity to every individual and institution to submit their views. In its order the Apex Court permitted the people to submit their views to through the website of the Department of Justice (DoJ), Union Ministry of Law and Justice by 5:00 pm on the November 13, 2015. People are invited to make submission for reforming the Collegium system under four categories:
  • Transparency (in the functioning of the Collegium in the future)
  • Collegium Secretariat
  • Eligibility Criteria (for selecting candidates for appointment as judges of the High Courts and the Supreme Court)
  • Complaints (how to handle them when received against candidates being considered for recommendation for appointment)
According to the Apex Court, suggestions received after the deadline will not be entertained. All suggestions will be compiled by lawyers who have been assisting the Apex Court in this matter, till date. All submissions received through the DoJ website will be compiled and added to the list of suggestions already prepared by the assisting lawyers based on a limited consultation process and submitted to the Court. The Apex Court has said that it will hear this matter again on November 18, but only for two days. The Court has also said that it will hear only such lawyers selected by a Committee chaired by the Attorney General of India and having the Chairman Bar Council of India and noted Senior Advocate Fali Nariman prior to the date of hearing.

What is problematic with this consultation process?

With the deepest respect to the wisdom of the Apex Court and fully taking note of the fact that there are hundreds of vacancies across various High Courts and the Supreme Court that need to be filled up urgently, I beg to differ with the manner in which this consultation process is taking place. No doubt the unprecedented step taken by the Apex Court as urged by the legal fraternity deserves the highest accolade. However, the timelines and the manner of collecting feedback leave much to be desired. Individuals often not endowed with adequate resources wait for years and even decades for justice to be delivered by the High Court and the Supreme Court. Yet, when it comes to the seeking feedback from the people about what needs to be done to reform the Collegium system, people have just a week to submit their views. Further, common citizens can make their submissions to the DoJ only through email (collegium-suggestions@gov.in and collegium-improvement@gov.in). In a country where 80-85% of the people do not have access to the Internet on a regular basis, this mode of collecting views from the public will end up facilitating only the elite few (this author included). Of them, how many would be interested in making submissions on the subject is anybody’s guess.
Another problem that I would like to point out is the lack of adequate information on which to comment. Few people have adequate knowledge about the processes that are currently being followed for the selection of candidates for recommendation to the President for appointing as judges of the Supreme Court and the High Courts. All that is available in the public domain are two Memoranda of Procedure for the selection process uploaded on the DoJ website. One relates to the selection of candidates for appointment as judges of the Supreme Court and the other relates to the process of selection of candidates for appointment as judges in the High Courts. The Memorandum relating to the appointment in the High Courts contains two Annexures which provide some idea about the details about each candidate that are required to be submitted by the concerned Chief Justice to the Governor after consultation with the Chief Minister who in turn sends his/her recommendations to the Union Law Ministry from where the papers go to the Chief Justice of India for discussion in the Collegium.
The proformas [Annexures I(i) and I(ii)] for forwarding names of candidates in the context of the High Courts give a fair idea of some of the parameters that are likely to be looked into by the Collegium while ascertaining the suitability of the candidate apart from personal details such as: area of specialisation in law or nature of practice in a specific field of law, number of reported and unreported judgements in which the candidate argued independently (for lawyers), whether he/she is associated with any political party, position held in Bar Councils or Associations or clubs, social or recreational organisations, whether involved in any civil or criminal cases personally (and if so nature of the involvement), confidential reports written about the candidate during the last 15 years (in the case of serving judges) etc.
In addition to these and several other parameters, the forwarding documents are required to contain an assessment of the candidate’s academic competence, equipment in law, ability to grasp and deal with complex legal problems, maturity, objectivity, team spirit, patience, analytical mind, fairness, capacity to persuade and be persuaded etc, presumably made by the Chief Justice in consultation with the senior-most judges of the High Court. Strangely the memorandum of procedure relating to the appointment of the Chief Justice and other judges of the Supreme Court does not contain any such proforma! What criteria is used for selecting candidates for appointment as judges to the Supreme Court is not known publicly. Further, what weightage is given for gender, religious and caste diversity apart from representation to the States and Union Territories for selection of judges to both the High Courts and the Supreme Court is now known.
Given these major lacuna, how will people be able to send their comments in an intelligent manner is a big question. The people must first be told what are the flaws in the Collegium system and what has not worked well over the last few decades. Only then will people be able to send well thought out suggestions for applying corrections. In the absence of such a a meaningful and widespread consultation exercise, it will leave out a vast majority of the citizenry who have serious concerns about the manner of access to justice which directly relates to the selection of judges to the Constitutional Courts

The Supreme Court’s Collegium and its coverage under the RTI Act

While delivering his separate opinion in the matter of State of U.P. vs Raj Narain [AIR 1975 SC 865] Justice K K Mathew wrote:
“The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. To cover with veil secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.” 
This duty of transparency demanded of the Executive by the Apex Court, while discovering that people’s right to know is a deemed fundamental right within the meaning and scope of the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution, is now harking back at the Apex Court itself. The Apex Court has a duty to make the Collegium’s transactions transparent. This duty of transparency is clearly laid down in the Right to Information Act, 2005 (RTI Act) itself. I believe the following is the minimum requirement of transparency laid down by the RTI Act as far as the Collegium’s business is concerned:
a) The Collegium is a unequivocally a body which is part of a ‘public authority’ under the RTI Act:
The purpose behind Parliament enacting the RTI Act is explicated in its Preamble. It is to establish a regime of transparency, to provide people with the means to access to information about the functioning of public authorities, to make their transparent to the people, and to enable people to combat corruption and demand accountability from all public authorities covered by the RTI Act. All levels of the judiciary including the Constitutional Courts such as the Supreme Court and the High Courts are covered by the RTI Act.
They are clearly ‘public authorities’ within the meaning of that term defined under Section 2(h) of the Act. The definition of the term “information” provided in Section 2(f) of the RTI Act covers all information held in material form by all public authorities including all courts. No distinction is made in the context of judicial or administrative records of courts. They are also covered within the definition of the “right to information” in Section 2(j) of the RTI Act. Nothing in Section 24 pertains to the judiciary as exemptions are available only to intelligence and security organisations notified by the appropriate governments. Even such organisations cannot refuse access to information about allegations of human rights violation or corruption under the RTI Act.
The Collegium being a part of the Supreme Court of India or the office of the Chief Justice of India, will be covered by the RTI Act. There is no need to go into the issue of whether it is or is not a “public authority” under the RTI Act as it would suffice to treat it as a body constituted for the purpose of providing advice for the public authority which in this case would be the President of India. Either the Registry of the Supreme Court or the office of the Chief Justice of India would hold the records relating to the proceedings of the Collegium. So every citizen will in their have the “right to access information” regarding the Collegium’s transactions under the RTI Act, either proactively or upon making a formal request, subject of course to any exemption under Section 8(1) of the Act that may be applicable.
b) Duty of proactive disclosure of information about the selection of candidates for appointment as judges
Section 4(1)(c) of the RTI Act states that every public authority, including courts, at all levels must announce all relevant facts while formulating policies or important decisions that affect the public at large. Section 4(1)(d) of the RTI Act requires every public authority to give reasons for its administrative and quasi-judicial decisions to affected persons. Decisions of the Collegium of the Hon’ble Supreme Court regarding the selection of candidates for referral to the President for appointment as judges and additional judges of the High Courts and the Supreme Court are done in the public interest and not merely to provide an employment or source of livelihood to the candidates. They are appointed to adjudicate disputes of myriad kinds and dispense justice. It is people’s access to justice that they are concerned with. So people must have access to information about the manner of selection of candidates for appointment as judges.
Clearly the decisions of the Collegium fall either in the administrative or the quasi-judicial domain. So there is no reason why they cannot be treated as information covered by the RTI Act and held by a public authority covered by the RTI Act and which must be proactively disclosed to the people or on request subject to the exemptions under Section 8(1) of the Act. Further, either the Supreme Court or the office of the CJI must indicate clearly under Section 4(1)(b)(viii) of the RTI Act as to whether the meetings of the Collegium will be open to the public or if the minutes of its meetings will be available to the public.
c) Duty to disclose norms and criteria for selection
Section 4(1)(b)(iv) of the RTI Act requires every public authority to proactively disclose the ‘norms’ used for the discharge of its functioning. This clearly extends to the ‘criteria’ adopted by the Collegium to select candidates for appointment. People have the right to know the criteria for selection, shortlisting or even dropping of names of candidates considered by the Collegium post facto. The criteria must be dislcosed in advance and at the time of recommendation for appointment, the Collegium must indicate which criteria the selected candidates fulfill and why.If some candidates are not selected, reasons must be given. This is now an established norm for the process of selection of government officers thanks to the RTI Act.
d) Protecting legitimate interests under the recognised exemptions in Section 8(1) of the RTI Act
A deal of information about the selected or the rejected candidates may fall under various exemptions under the RTI Act. While disclosing information, due regard must be had to Section 8(1)(j) of the RTI Act which exempts the disclosure of information which would result in the invasion of the privacy of an individual. Of course this exemption’s validity is subject to the Apex Court determining in the future whether the Constitution of India contains a guarantee of the right to privacy for every individual. As the Government of India has expressed serious doubts on this issue in the well known Aadhaar/UID case, this matter is sub judice even though public authorities continue to invoke Section 8(1)(j) in a routine manner to deny access to personal information of government employees and third parties. Until this matter is decided the Apex Court will have to draw up a negative list of information which if disclosed would result in any of the harms listed under Section 8(1) of the RTI Act. This list itself must be made public under Section 4(1)(b) of the RTI Act so that there is certainty about the kinds of information that will not be available to people ordinarily unless there is a strong public interest argument in favour of disclosure.
Additionally, the names of the members of the Collegium may be protected by invoking Section 8(1)(g) of the RTI Act from unwarranted disclosure. This exemption may be invoked to protect them from possible harm likely to be caused by failed candidates.
e) post facto disclosure of details of selection
Section 8(1)(i) of the RTI Act pertains to the exemption available for Cabinet papers. However the bar on disclosure operates only until a decision is reached by the Cabinet on any matter placed before it. Until then, Cabinet papers and the records of deliberations of the Ministers and other senior officers in relation to the Cabinet papers may not be disclosed. However, once a decision is taken and the matter is complete or over, the decision itself, the reasons for such decision and the materials that formed the basis for arriving at the decision cannot be denied to anybody, ordinarily. They can be denied only if any other exemption listed in Section 8(1) is also applicable to the information requested. There are several instances where Cabinet agenda items, Cabinet Notes and file notings of officers who contributed to the decision making process have been disclosed under the RTI Act, to several RTI users including this author. Given this requirement of transparency in the most traditionally secretive of bodies, namely, the Cabinet, there is no reason why the Collegium cannot lay down standards for disclosing information about the selection process once the matter is complete or over with due regard to the exemptions listed in Section 8(1) of the RTI Act.
f) even exempt information may be disclosed in the public interest
Section 8(2) of the RTI Act states that even exempt information may be disclosed if by so doing the public interest will be benefited more. So where public interest in disclosure outweighs the harm to the interests protected in Section 8(1), a public authority has the discretion to disclose such information. There may be instances in the future where some information sought under the RTI Act that attract one or more of the exemptions may have to be disclosed in the larger public interest. However, that decision will have to be made on a case by case basis.g) Duty of the Supreme Court to provide accurate information about its working in a timely manner
Section 26(1)(c) of the RTI Act casts a statutory duty on every Government (State and Central) to “promote timely and effective dissemination of accurate information by public authorities about their activities.” So being part of a public authority under the RTI Act, namely, the Supreme Court, or the office of the Chief Justice of India, the Collegium has a duty to assist the Central Government in the performance of this statutory duty by making all information not covered by Section 8(1) of the RTI Act public in a timely manner. A similar duty devolves on the High Courts which are involved in the process of recommending names of individuals for appointment as judges or additional judges.
The recipe provided by the RTI Act for transparency in the working of the Supreme Court’s Collegium is very clear, practical and positive. Some information must be disclosed proactively or on request while sensitive information may be withheld for protecting legitimate public interests. I hope readers will go through the matters raised in this email deeply and send their submissions to the DoJ. Ideally, citizens should demand an extension of the deadline and press the DoJ to take steps to involve a larger part of the citizenry by issuing advertisements through the print and the electronic media and making arrangements for collecting views of the people form the grass roots level.
The working of the Collegium affects not only those who wear black robes but all those who do not have the means to buy any kind of robe.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

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