ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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An Empirical Inquiry

Supreme Court Collegium and Transparency

The Supreme Court collegium in India, which is the determinative authority for appointment of judges to the higher judiciary, began publishing its resolutions on the Supreme Court website in October 2017, purportedly to foster transparency. A study of all the published resolutions over a period of two years—from 2017 to 2019—reveals that the collegium systematically failed to disclose critical information essential to an enhanced understanding of its functioning and thus failed in its declared objective of promoting transparency.

 

 When the Supreme Court decided to strike down the constitutional amendments establishing the National Judicial Appointments Commission in Supreme Court Advocates on Record Association v Union of India (2016), it quite clearly admitted the severe flaws in the functioning of the collegium. It also admitted the need for meaningful reform in how the collegium functioned. This led to another judicial order in Supreme Court Advocates on Record Association v Union of India (2015) wherein the Court sanctioned a process of public consultation to seek suggestions on the trajectory of reform. Seemingly inspired by this spirit of reform, the Supreme Court collegium presided over by Dipak Misra decided on 3 October 2017 to publish the resolutions of the collegium concerning appointment of judges in the high courts and Supreme Court, appointment of chief justices in the high courts and transfer of high court judges. The declared objective was to ensure transparency in the collegium system while also maintaining confidentiality. The term “confidentiality” did not feature in the agenda of the meeting but is mentioned in the decision taken at the meeting. It may be seen as an attempt to temper the expectations about how transparent the collegium was actually going to be. The collegium explicitly stated that the decisions of the collegium would be published along with reasons.

This practice of publishing resolutions continued from 3 October 2017 to 3 October 2019 with minor variation in terms of content and format. However, since 15 October 2019, while one can still locate the heading of “collegium resolutions” on the Supreme Court of India website, the files themselves have been retitled as “statements” and the published statements only contain the list of nominated judges. There is no disclosure about the candidates who are recommended by the different high court collegiums and the decision taken by the Supreme Court collegium in relation to all such candidates. There is no information about the views of judicial colleagues consulted by the collegium or that of the chief ministers and the governors. There is also no detail about any objections received from the Department of Justice (DoJ). The statements merely list out the judges who have been recommended by the collegium without any other detail whatsoever.

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Updated On : 29th May, 2021

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