LAST WEEK, the outgoing Chief Justice of India (CJI), Justice B.R. Gavai, while responding to a question from the media, said that the Collegium had unanimously decided not to publish reasons for its recommendations. He justified this by saying that giving reasons might hamper the future prospects of the candidates concerned.
I would return shortly to Justice Gavai’s decision to retreat from transparency. First, however, it is necessary to set out in detail how the Collegium, under different CJIs, has oscillated between opacity and some semblance of transparency and accountability in the appointment process.
A system that slipped into opacity
The Collegium system, which owes its existence to judicial interpretation, came into being in 1993. Since then, the power to appoint judges has rested primarily — at least de jure — with the Collegium.
This mode of appointment of judges, whereby judges appoint judges, is often defended as essential to safeguarding judicial independence, ensuring that appointments are not predominantly at the behest of the executive, which itself constitutes a large chunk of the litigants before the courts.
Speaking at the 5th V.M. Tarkunde Memorial Lecture in 2011, former Supreme Court judge and the first judge to make it to the Collegium, said:
“Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.”
Concerns about the opacity of the Collegium’s functioning have been raised repeatedly. Justice Jasti Chelameswar, in his sole dissenting judgment in the NJAC case, famously observed: “Unfortunately, the correspondence between the Government and the CJI and the record of the consultation process are some of the best-guarded secrets of this country.”
Justice Chelameswar, who had been a member of the Supreme Court Collegium and retired as the senior-most judge of the Supreme Court, boycotted Collegium meetings when Justice T.S. Thakur was CJI to protest the lack of transparency. Yet matters continued unchanged — opaque as ever. No one knew on what basis, or for what reasons, particular candidates were recommended for judgeship.
In those days, the Collegium did not even issue official statements announcing that a particular candidate had been recommended for appointment or transfer. Justice Kurian Joseph, though he did not strike down the Constitution (Ninety-ninth Amendment) Act and the National Judicial Appointments Commission Act, 2014, agreed with Justice Chelameswar that the Collegium system lacked transparency, accountability, and objectivity. He highlighted that certain appointments were deliberately delayed either to favour preferred choices or to deny benefits to those less favoured.
Since all five judges in the NJAC case agreed that the Collegium’s functioning needed improvement, they listed the matter for further hearing. Eventually, on December 16, 2015, the Supreme Court closed the case, directing the government to finalise the Memorandum of Procedure (MoP) in consultation with the CJI.
The order specifically required the MoP to include eligibility criteria (such as minimum age) for the guidance of the Collegium (both at High Court and Supreme Court levels) after inviting views from the State Government and the Government of India, as the case may be. The order further directed that the eligibility criteria and the appointment procedure detailed in the MoP must be placed on the website of the court concerned and the Department of Justice of the Government of India.
It suggested that the MoP provide for minuting discussions, including recording dissenting opinions, while maintaining confidentiality consistent with transparency. It also recommended establishing a secretariat for each High Court and the Supreme Court, and an appropriate mechanism for handling complaints against persons being considered for judicial appointment.
A brief transparency interlude
I would return to the fate of that MoP, but first it is necessary to trace the subsequent chain of events. In September 2017, news broke that Justice Jayant Patel, the senior-most puisne judge at the Karnataka High Court, had resigned. Reports suggested he was being transferred to the Allahabad High Court, where he would lose seniority, despite being in line for elevation as Chief Justice.
In the ordinary course, he would have become Acting Chief Justice of Karnataka High Court and stood a strong chance of being appointed permanent Chief Justice there (he belonged to the Gujarat High Court, so Karnataka was not his parent High Court).
As a Gujarat High Court judge, Justice Patel had ordered a CBI investigation into the 2004 Ishrat Jahan encounter case. His transfer to Allahabad was widely perceived by civil society and the Gujarat High Court Bar Association as punitive.
The episode once again exposed the Collegium’s secretive functioning. Justice Dipak Misra was CJI at the time. To his credit, CJI Misra did what no CJI had done in the 24 years since the Collegium’s inception. The Collegium headed by him (comprising Justices Chelameswar, Ranjan Gogoi, Madan B. Lokur, and Kurian Joseph) began uploading its resolutions on the Supreme Court website. That modest transparency, however, proved short-lived and entirely dependent on the personal inclination of the incumbent CJI.
Justice Ranjan Gogoi succeeded CJI Misra. For a while, he continued uploading resolutions. Then, without reason or any publicly disclosed Collegium decision rescinding the earlier practice, the website reverted to issuing brief, perfunctory, unsigned statements merely announcing that certain persons had been recommended.
The practice of issuing bare statements continued under CJIs S.A. Bobde, N.V. Ramana, and U.U. Lalit. (Some benefit of the doubt may be extended to Justice Lalit, whose tenure lasted only three months, though even he made public the Collegium’s decision to shelve proposals for lack of consensus.)
When Justice D.Y. Chandrachud assumed office in November 2022, the practice of uploading detailed resolutions was restored. Resolutions now included the date on which the High Court forwarded names, factors such as merit, seniority, and diversity, the nature of government objections (where any), and how the Collegium addressed them.
In doing so, Justice Chandrachud largely honoured the views he had expressed before becoming CJI in his concurring opinion in Central Public Information Officer v. Subhash Chandra Agarwal where he wrote:
“There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial office and making judicial appointments… Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments.”
Justice Sanjiv Khanna succeeded CJI Chandrachud. Once again, detailed resolutions disappeared, replaced by unsigned statements.
Although Justice Khanna deserves credit for proactively disclosing information about cash recovered from Justice Yashwant Varma’s residence and, towards the end of his six-month tenure, for releasing three crucial documents, his decision to discontinue publishing reasoned resolutions marked a clear retrogression.
The three documents released by CJI Khanna included:
Statistical data on recommendations made and appointments notified during his tenure, including social diversity and judicial connections of appointees.
A document listing factors considered for High Court appointments, illustrative government objections, and the prescribed bio-data format.
A document on the appointment of Supreme Court judges.
The High Court Collegium considers:
merit and integrity as the prime criteria;
candidates from the Bar must have age between 45- 55 years, on the date of recommendation (relaxation may be made if the person is otherwise of outstanding merit);
advocate should be an income tax assessee for the preceding 10 years, if not exempted from paying income tax;
average net professional income– minimum Rs. 7 lakhs per annum during the preceding five years. Adequate number of reported judgments;
pro-bono work of the Advocates in the courts;
performance of the advocates in the courts;
in the case of judicial officer, the age must be within 58½ years on the date when the vacancy arises;
due weightage to inter se seniority of Judicial Officers; and
social diversity and representation to women and other marginalized sections of the society
Chief Ministers may also recommend names to the High Court Chief Justice. After the proposal reaches the Supreme Court Collegium through the Union Law Minister, the CJI obtains views from Supreme Court judges conversant with the concerned High Court, and Collegium members make independent enquiries from various sources (nature unspecified). Personal interaction with recommendees is also done.
The document lists numerous factors given “due weightage”: bio-data, nature of practice, reported/unreported judgments, standing at the Bar, pro-bono work, consultee-judge views, Intelligence Bureau inputs, complaints/representations, and informal consultations with stakeholders.
As per the format of bio-data, candidates are required disclose political affiliations (if any) and details of blood relatives practising in the High Court or subordinate courts; such relatives must undertake not to practise in the same High Court or subordinate courts for two years after appointment.
Although the document states that complaints are examined, no mechanism or procedure for receiving, verifying, or disposing of complaints is outlined. Moreover, the MoP currently available on the Department of Justice website neither incorporates most of these criteria nor provides any complaint-handling mechanism, raising doubts about whether it is the revised MoP contemplated by the Fourth Judges case (NJAC case).
This also begs a question. Until the Supreme Collegium finalises its recommendation and issues a statement, the public has no way of knowing whose names are under consideration, making meaningful intervention on complaints practically impossible.
The document also states that if the government receives inputs having national security implications or which may be of overriding public interest, the Government at any stage before the elevation of the concerned candidate, ask Supreme Court Collegium to reconsider the recommendation. And if the Supreme Court Collegium reiterates its recommendation, the same is to be accepted by the Government.
Even this aspect of the national security is not mentioned in the MoP on the government’s website.
Supreme Court appointments document
It is a brief document. It states that consultation begins with the senior-most Supreme Court judge from the recommendee’s High Court; merit, integrity, disposal rates (considered with quality and workload), inter-se seniority, and fair representation of High Courts are the prime criteria.
However, the manner in which appointments have been happening without making reasons for making recommendations public, one wonders whether the person so recommended meets the criteria formed by the Collegium for the recommendation of candidates. It is a matter of fact that some High Courts in the Supreme Court are not at all represented, while some High Courts are overrepresented. The reasons for the same are not available.
CJI Gavai’s recent statement that publishing reasons would harm candidates’ future prospects is, with respect, misleading. Disclosing positive reasons for recommending a name cannot conceivably damage a candidate, even if the government were later to reject it (names are in any event published once recommended).
The repeated back-and-forth on transparency under successive CJIs demonstrates that the judiciary as an institution remains reluctant to subject one of its most vital functions, self-appointment, to public scrutiny. The institution that rightly demands accountability from the executive and legislature continues, even after 75 years of Independence, to shield its own appointment process from the same standard.
The degree of transparency achieved during the tenures of CJI Dipak Misra and CJI D.Y. Chandrachud has been rolled back. The return to near-total opacity under CJI Sanjiv Khanna and CJI B.R. Gavai is nothing short of retrogression.
The Memorandum of Procedure (MoP), which the government was required to finalise in consultation with the CJI pursuant to the Supreme Court’s directive in the NJAC case, remains nowhere in sight even a decade later.
Moreover, the government’s practice of cherry-picking names from the Collegium’s recommendations thereby disturbing the inter-se seniority of candidates, indefinitely delaying some appointments for years, and the Collegium’s consistently meek response to such interference, raise serious questions about the very purpose for which the Collegium system was established in the Second Judges Case: to safeguard the independence of the judiciary.
That, however, is a different story altogether, the one that will be written on some other day.