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Two Small Steps towards Transparency

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is senior resident fellow at the Vidhi Centre for Legal Policy, and is based in Bengaluru.

Two recent decisions, one administrative and one judicial, have given hope that the judiciary has finally accepted how non-transparent and unaccountable its functioning has become. The decision to make collegium resolutions public and the judgment to streamline designations of “senior advocates” are necessary first steps towards the larger goal of transparency in the judiciary. Both instances highlight the need for the bar and advocates to speak up for the institution and on behalf of the larger public interest.

For all the adherence to the principles and practices of open courts and open justice in hearing cases, India’s judiciary performs many vital functions entirely behind closed doors and without accountability. Transparency is its own form of accountability and the Indian judiciary, led by the Supreme Court, has resisted consistent demands to open up. Whether it was in the context of recommending names for appointments to the higher judiciary or designating advocates as senior advocates, or deciding when to list matters, or just making more information available through the Right to Information Act, 2005, the higher judiciary has been less than forthcoming.

It is in this context that the decision of the Supreme Court to upload the resolutions of the collegium on its website and the judgment in Indira Jaising v Supreme Court of India (2017) should be welcomed. Together, these two decisions, one administrative and one judicial, have opened a few cracks through which the light can enter. It is worth examining the context and the way these two decisions came about, why they matter so much, and how they may point to the future of ensuring greater transparency in the judiciary.

Justice Patel’s Supersession

Ostensibly, the senior-most judge at the Karnataka High Court and all set to take over as chief justice once the incumbent Justice S K Mukherjee retired, Justice Jayant Patel was suddenly transferred from the Karnataka High Court to the Allahabad High Court in “public interest.” Nothing about this transfer made immediate sense. Karnataka High Court has a serious shortfall of judges, down to less than half the number required, and the transfer coming so close to the chief justice’s retirement would have meant that the strength would fall even further. The Allahabad High Court does have the largest number of vacancies in the country, but it would be ridiculous to believe that this can be addressed by depriving a judge-starved high court of one more judge. Moreover, Justice Patel would not be chief justice in Allahabad as he would not be the senior-most judge there and probably retire before he had a chance to become the chief justice.

This was also not a transfer he had consented to, and if the collegium and the government had some legitimate aim, it was not apparent to anyone; more so, since, as subsequent events showed, he enjoyed an excellent reputation with both the Gujarat and Karnataka bars for honesty and efficiency as a judge. Observers have also noted that he had passed the order directing a Central Bureau of Investigation probe into the extrajudicial killing of Ishrat Jahan and three others, which resulted in the now Bharatiya Janata Party President Amit Shah being taken into custody (Wire 2017). Dots were joined and it was hard to miss the conclusion: the collegium had colluded with the government to penalise an honest judge simply for being independent.

The parallels with the supersession of Justices J M Shelat, K S Hegde and A N Grover in 1973 and Justice H R Khanna in 1975 for the post of Chief Justice of India were hard to ignore. The Gujarat High Court Advocates’ Association and the Karnataka State Bar Council condemned this decision in the strongest language, and boycotted the courts for one day. Criticism was also levelled at the collegium and specifically at Chief Justice of India Dipak Misra by Senior Advocate Dushyant Dave, holding him responsible for harming the judiciary’s independence in no uncertain terms.

The criticism seems to have stung, but the first response of the collegium was to close ranks and claim that the decision was “unanimous” (Krishnan 2017). Wiser counsel seems to have eventually prevailed and, on 6 October 2017 (coincidentally, 24 years after the second judges case judgment creating the collegium was delivered [Supreme Court Advocates on Record Association v Union of India 1993]), the collegium uploaded its resolution of 3 October 2017 directing all collegium resolutions concerning appointments and transfers to be uploaded on the website. As part of the move, the recommendations of the collegium in respect of judges to be appointed to the Kerala High Court and Madras High Court were also uploaded.

‘Senior Advocate’ Designations

Although Section 16 of the Advocates Act, 1961 allows certain advocates to be designated as “senior advocates” by the high courts, on the basis of “standing at the Bar or special knowledge or experience in law,” there was little material to suggest that designations were being done with any of this in mind. Dissatisfaction with this system was manifold, from allegations of being non-transparent and subjective (as alleged by Indira Jaising [Indira Jaising v Supreme Court of India 2017: para 30]) to the allegations that it was unconstitutional and constituted discrimination (as alleged by the Gujarat High Court Advocates’ Association [Indira Jaising v Supreme Court of India 2017: para 3]).

While holding that there was nothing unconstitutional per se in having two categories of advocates under the Advocates Act, 1961, the Supreme Court did accept that the present system of designating senior advocates left much to be desired. The judgment in the Indira Jaising case lists out the rules governing appointments in all high courts and does not seem convinced that these are necessarily objective, or in any way transparent or designed to ensure that the decision to designate is intended to reflect standing, knowledge or experience.

With the intent to make the process and norms uniform, the Supreme Court will proceed to set up a permanent committee called the “Committee for Designation of Senior Advocates,” which will be headed by the chief justice. This committee will include the two senior-most judges of the high courts (for high court designations) and two senior-most judges of the Supreme Court (for Supreme Court designations). The Supreme Court also lays down specific parameters as to how this permanent committee will assess candidates, and creates a secretariat to handle the data collected and the procedure to be followed in designations.

The directions have implications beyond designations in my view. The parallels with the appointment process for judges cannot be missed. Here is a judgment that has laid down objective criteria for assessment of candidates and created a secretariat for processing relevant information, two key deficiencies of the present system noted by the Supreme Court itself (Supreme Court Advocates on Record Association v Union of India 2015). In addition, the judgment also makes the experience criteria the same as that of the eligibility criteria for a high court judge: 10 years of practice. One can only ask in hope: Is the Supreme Court laying down the groundwork for seriously overhauling the appointments mechanism?

What Lies Ahead

It cannot be any coincidence that in both these instances, the bar has been at the forefront of the demand. Whether it was in the strong protest and boycott of both the Gujarat and the Karnataka bar associations following Patel’s resignation, the Meghalaya Bar Association approaching the Supreme Court against the high court, or the strident criticism of the Supreme Court by Dave and Jaising in public forums, the lead was taken by the bar. As the group that deals most often with the judiciary, and is also sufficiently well-organised, the bar is perhaps well placed to put such pressure on the judiciary.

That said, the bar did not rise as one on both occasions. In the context of Justice Patel, the Bar Council of India (BCI) and the Supreme Court Bar Association (SCBA) seemed to be concerned far more about Dave’s reactions than the actual implications for the judiciary’s independence. It, perhaps, goes to show that the bar can have an impact not because of the BCI or the SCBA, but despite them. It is worth noting that the Bombay High Court Bar Association and the Advocates Association of Western India had registered a strong protest against the chief justice of the Bombay High Court against her decision to change a judge from a case based on the government’s opposition to him. The criticism seems to have prompted the chief justice to change her mind and restore him to the case.

These two cases also show what can be achieved when the bar plays a constructive role in the administration of justice, beyond just the disposal of cases. It is a different matter that organisations that are supposed to or claim they intend to represent the bar have failed in their duties.

The criticism of the collegium also has an internal aspect to it. Justice J Chelameswar, for instance, has registered his protest at its functioning while being a member of it. It cannot also be missed that another common factor in both these decisions has been Justice Ranjan Gogoi. Apart from having delivered the judgment in the Indira Jaising case, he was also on the collegium that decided to upload all its decisions on the website. By convention, he is to be the next chief justice of India once Justice Misra retires in October 2018. Will we see a more direct push to increase transparency once he takes over? Could the impasse over the Memorandum of Procedure be broken with the judiciary itself taking certain proactive measures on appointments?

It is too early to say for sure and speculating on this is unwise. Nonetheless, there is space for cautious optimism for building on the momentum towards a more transparent and accountable judiciary in India.

References

Indira Jaising v Supreme Court of India (2017): Writ Petition (Civil) No 414 of 2015, Supreme Court judgment dated 12 October.

Krishnan, Murali (2017): “Collegium’s Decision to Transfer Jayant Patel J Was Unanimous, Taken after Considering Inputs-on-record,” Bar & Bench, 3 October, viewed on 14 October 2017, https://barandbench.com/collegiums-decision -transfer-justice-jayant-patel-unanimous-taken-considering-inputs-record/.

Supreme Court Advocates on Record Association v Union of India (1993): SCC, SC, 4, p 411.

(2015): SCC Online, SC, 1322.

Wire (2017): “Karnataka High Court Judge, Who Had Once Ordered Ishrat Jahan Probe, Resigns,” 26 September, viewed on 14 October 2017, https://thewire.in/181463/judge-patel-denied-elevation-resigns/.

Updated On : 3rd Nov, 2017

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