Transparency in Judiciary

Transparency in Judiciary

Transparency in Judiciary

This is a guest blog by Miss Natasha Sharma.

Genesis of Collegium System

The collegium system is a system wherein the judges are appointed and transferred by the decision taken by the Chief Justice along with four other senior most judges of the court and the government has a role only after the names have been decided by the collegium.  The advent of collegium system marked its beginning in the case of S.P Gupta v Union of India AIR 1982 SC 149 wherein it was held that there was no primacy of the Chief Justice in the appointment of judges and therefore the status of the Chief Justice as well as the judiciary diminished. In 1993 a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association Vs. Union of India (1993 (4) SCC. 441) over-ruled the decision held in S.P.Gupta case. The nine-Judge Bench (with the majority of seven) not only overruled S.P. Gupta’s case but also devised a specific procedure for appointment of judges of the Supreme Court in the interest of “protecting the integrity and guarding the independence of the judiciary.”  For the same reason, the primacy of the Chief Justice of India was held to be essential and ruled that the decision of appointment and transfer would be taken in consultation with 2 senior most judges.
In the Third Judge Case in 1988, the Supreme Court laid down 9 guidelines for the functioning of the quorum for appointments and transfers — which has come to be the present form of the collegium. The guidelines stated that the recommendation should be made by the CJI and his four senior most colleagues, instead of two.

NJAC Act, 2014 Struck Down

The National Judicial Appointments Commission (NJAC) Act, 2014 came through the 99th amendment to the Constitution.  The NJAC would consist of the CJI and two senior most judges, the Law Minister, and two eminent persons from the public to be chosen by the President in consultation with the CJI. The Supreme Court struck down the NJAC as unconstitutional by 4:1 majority and upheld the collegium system.

 End to Nepotism?

Twenty four years and twenty chief justices later, five senior most judges of the Supreme Court have taken a significant step towards bringing transparency in appointment to the higher judiciary by passing a resolution on 3rd October 2017 stating that the decisions taken by the collegium shall be put on the website of the Supreme Court.
This has been a significant step taken up by the Supreme Court in assuring transparency in appointment to higher judiciary.  The collegium would indicate the reasons behind decisions on the initial appointment of candidates to High Court benches, their confirmation as permanent judges and elevation as High Court Chief Justices and to the Supreme Court and transfer of judges and Chief Justices from one High Court to another. This indicates there will now be some material available in the public domain to indicate why additional judges are confirmed and why judges are transferred or elevated.
This paramount change came with the resignation of Justice Jayant M. Patel of the Karnataka High Court after he was transferred to the Allahabad High Court as a puisne judge, despite his being senior enough to be a High Court Chief Justice. Justice J Chelameswar who supported the NJAC had also written a dissenting verdict, criticizing the collegium system by holding that “proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks”. These two incidents had been a driving force to make the system transparent.
It is a commendable beginning towards assuring transparency in the judicial system and eliminating nepotism in the appointment procedure. There is an effort made to strike a balance between confidentiality and transparency by stating grounds for selection. This step will ensure that the judges work in a transparent manner since their reputation will be at stake. An effective and efficient judiciary can change the shape of the judicial system in India and end the prevailing culture of nepotism.

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