The importance of transparency is paramount, and it is identified in the Lilongwe Principles and Guidelines as an overarching principle that should  permeate every stage  of the selection and appointment process. As indicated in the explanatory text, transparency is a cross-cutting principle that is necessary for enhancing the integrity of, as well as public confidence in, the process.

The Supreme Court collegium's decision to disclose the reasons for its recommendations marks a historic and welcome departure from the entrenched culture of secrecy surrounding judicial appointments. It will provide a window of understanding into the mind of the collegium. Judicial independence is not a shield to protect wrong. It is not a carte blanche to arbitrary behaviour.

Penning his separate but concurring opinion while dismissing the appeal against Delhi HC judgment that held Office of Chief Justice Of India is under purview of Right To Information Act, 2005 Justice D. .Y Chandrachud has observed that the basis for the selection and appointment of Judges to the Higher Judiciary must be defined and placed in the public realm.

According to him, this would promote confidence in the appointments process, and also would foster a degree of transparency and promote accountability in decision making at all levels within the Judiciary and the Government. Following are the important observations made in the judgment by Justice Chandrachud.

The Collegium is a victim of its own birth – pangs

The collegium owes its birth to judicial interpretation. In significant respects, the collegium is a victim of its own birth – pangs. Bereft of information pertaining to both the criteria governing the selection and appointment of judges to the higher judiciary and the application of those criteria in individual cases, citizens have engaged the constitutional right to information, facilitated by the RTI Act.

There is a vital element of Public Interest in knowing about the norms

What needs to be emphasised is that the substantive standards which are borne in mind must be formulated and placed in the public realm as a measure that would promote confidence in the appointments process. Due publicity to the norms which have been formulated and are applied would foster a degree of transparency and promote accountability in decision making at all levels within the judiciary and the government. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office.

There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process.

If the content of the right and the enforcement of the statute are to possess a meaningful dimension in their application to the judiciary – as it must, certain steps are necessary. Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments.

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 officer 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. This is essentially because the collegium system postulates that proposals for appointment of judges are initiated by the judges themselves.

Essential substantial norms in regard to judicial appointments include:

1. The basis on which performance of a member of the Bar is evaluated for the purpose of higher judicial office;
   
   
2. The criteria which are applied in determining whether a member of the Bar fulfils requirements in terms of:
   a) Experience as reflected in the quantum and nature of the practice;
   b) Domain specialization in areas which are geared to the evolving nature of litigation and the requirements of each court;
   c) Income requirements, if any, having regard to the nature of the practice and the circumstances prevailing in the court or region concerned;
   d) The commitment demonstrated by a candidate under consideration to the development of the law in terms of written work, research and academic qualifications; and
   e) The social orientation of the candidate, defined in terms of the extent of pro bono or legal aid work;
   
   
3. The need for promoting the role of the judiciary as an inclusive institution and its diversity in terms of gender, representation to minorities and the marginalised, orientation and other relevant factors.

Adverting to the facts, a batch of three Civil Appeal No 10044/2010, Civil Appeal No 10045/2010 and Civil Appeal No 2683/2010 raised questions of constitutional importance having bearing on 'the right to know', 'the right to privacy' and 'the transparency, accountability and independence of the judiciary'.

In Civil Appeal No 10044 of 2010 (the appointments case), the Central Public Information Officer of the Supreme Court of India challenged an order dated November 24, 2009 of the Central Information Commission.

The order directed the CPIO to provide information sought by the respondent in application under the Right to Information Act 2005. The respondent, in an application dated January 23, 2009 sought copies of the correspondence exchanged between constitutional authorities together with file notings, relating to the appointment of Justice H. L. Dattu, Justice A. K. Ganguly and Justice R. M. Lodha (superseding the seniority of Justice A. P. Shah, Justice A. K. Patnaik and Justice V. K. Gupta).

The appellant declined to provide the information sought in the application on the ground that the Registry of the Supreme Court does not deal with matters pertaining to the appointment of Judges, and appointments of Judges to the Higher Judiciary are made by the President of India, according to procedure prescribed by law. The first appellate authority rejected the appeal on the ground that the information sought by the respondent was not covered within the ambit of Section 2 (f) and (j) of the RTI Act. The respondent preferred a second appeal before the CIC. On November 24, 2009, the CIC directed the appellant to provide the information sought by the respondent. The appellant moved Supreme Court under Article 136 of the Constitution of India challenging the decision of the CIC ordering disclosure.

In Civil Appeal No 10045/2010 (the assets case), the appellant challenged a Judgment dated January 12, 2010 of a Full Bench of the Delhi High Court upholding the orders of the Single Judge dated September 02, 2009 and the CIC dated January 06, 2009 directing the disclosure of information. On November 10, 2007, the respondent filed an application seeking a copy of the resolution dated May 07, 1997 of the Judges of the Supreme Court requiring every sitting Judge, and all future Judges upon assuming Office, to make a declaration of assets in the form of real estate or investments held in their names or the names of their spouses or any person dependant on them to the Chief Justice of the Court within a reasonable time.

The respondent also requested ―information on any such declaration of assets etc to respective Chief Justices in State. While the appellant provided a copy of the resolution dated May 07, 1997, the CPIO declined (by an order dated November 30, 2007) to provide information concerning the declaration of assets by Judges of the Supreme Court and the High Court on the ground that the Registry of the Supreme Court did not hold it. The information pertaining to the declaration of assets by High Court Judges, the appellant stated, were in the possession of the Chief Justices of the High Courts.

The first appellate authority remanded the matter back to the appellant for transfer of the RTI application to the High Courts under Section 6 (3). The appellant declined to transfer the RTI application to the CPIOs of the High Courts on the ground that when the respondent filed the RTI application, he was aware that the information with respect to the declaration of assets by the judges of the High Court was available with the High Courts which formed distinct public authorities. On January 06, 2009, the CIC held that the information concerning the Judges of the Supreme Court was available with its Registry and that the appellant represented the Supreme Court as a 'Public Authority'. Therefore, the appellant was held to be obliged to provide the information under the RTI Act unless, the disclosure of information was exempted by law.

The CIC held that the information sought by the respondent was not covered under the exemptions in clauses (e) or (j) of Section 8 (1) and directed the appellant to provide the information sought by the respondent. The appellant instituted a Writ Petition before the Delhi High Court. On September 02, 2009, a Single Judge of the High Court dismissed the Writ Petition holding, inter alia, that the declaration of assets furnished by the Judges of the Supreme Court to the Chief Justice of India and its contents constituted ―information, subject to the provisions of the RTI Act.

The Single Judge held that:

1. Judges of the Supreme Court hold an independent Office;
2. there exist no hierarchies in judicial functions;
3. the Chief Justice of India does not hold such ―information in a fiduciary capacity; and
4. the information sought by the respondent was not exempt under Section 8 (1)(e).

In a Letters Patent Appeal, the Full Bench of the Delhi High Court upheld the decision of the Single Judge. The appellant challenged the decision of the Full Bench.

In Civil Appeal No 2683/2010 (the undue influence case), the appellant challenged the order of the CIC dated November 24, 200914, by which the appellant was directed to provide information sought by the respondent in his RTI application. On July 06, 2009, the respondent filed an RTI application on the basis of a newspaper report seeking the complete correspondence exchanged with the Chief Justice of India in regards to a Union Minister having allegedly approached Justice R Raghupati of the Madras High Court, through a lawyer to influence a judicial decision.

The application sought a disclosure of the name of the Union Minister and the lawyer, and of the steps taken against them for approaching the judge of the Madras High Court for influencing the judicial decision. On August 04, 2009, the appellant rejected the request on the ground that no such information was available with the Registry of the Supreme Court.

The first appellate authority rejected the appeal. The second appeal before the CIC led to a direction on November 24, 2009, to provide the information sought, except information sought in Questions 7 and 8 on recourse taken to the in-house procedure. The appellant approached Supreme Court challenging the decision of the CIC.

Reference to the Constitution Bench
On November 26, 2010, a two Judge Bench of Supreme Court directed the Registry to place the batch of appeals before the Chief Justice of India for constituting a Bench of appropriate strength and framed the following substantial questions of law:

1. Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary?
   
2. Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision?
   
3. Whether the information sought for is exempt under Section 8 (1)(j) of the Right to Information Act? On August 17, 2016, a three judge Bench referred the Civil Appeals to a Constitution Bench for adjudication.

Judges are not above law
Judicial independence is not secured by the secrecy of cloistered halls. It cannot be said that increasing transparency would threaten judicial independence. The need for greater transparency and accountability in the appointment procedure or the lack of the same, has also been highlighted by other eminent retired Judges such as Justice J. S. Verma & Justice Ruma Pal in  Supreme Court Advocates-on-Record Association v Union of India (NJAC), 2016 5 SCC 1.

In an Article quoted in Justice Lokur‘s separate concurring opinion in the NJAC decision, Justice Verma while speaking about the collegium system observed:
 546…Have any system you like, its worth and efficacy will depend on the worth of the people who work it! It is, therefore, the working of the system that must be monitored to ensure transparency and accountability.
Furthermore, Justice Chelameswar, in his dissenting opinion, references a speech made by Justice Ruma Pal, where she stated thus:

 The process by which a judge is appointed to a superior court is one of the best kept secrets in this country. The very secrecy of the process leads to an inadequate input of information as to the abilities and suitability of a possible candidate for appointment as a Judge.

A chance remark, a rumour or even third-hand information may be sufficient to damn a judge‘s prospects. Contrariwise a personal friendship or unspoken obligation may colour a recommendation. 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.

The transparency of criteria and the process is a logical extension of the judicial appointment being 'meritorious', and that doing so would remove the 'arbitrariness' of the process, leading to upholding of Rule of Law. The transparency is necessary to ensure the public perception of the judiciary as independent. In the context of judicial appointments, appointments may happen on a proper, well- justified, substantive understanding of judicial merit. However, in order for the same to be truly independent, they must include within themselves the transparency of the criteria and openness of the process.

 56. Judicial independence does not mean the insulation of judges from the rule of law. In a constitutional democracy committed to the rule of law and to the equality of its citizens, it cannot be countenanced that judges are above the law. The notion of a responsible judiciary furthers the ideal for which an independent judiciary was envisaged. It is the exercise of the decision making authority guaranteed by judicial independence in a just and responsible manner, true to the ethos of judicial office that sub-serves the founding vision of the judiciary...........

Judicial independence is hence not a carte blanche to arbitrary behaviour.

Referring to observations made in the NJAC Judgment, Justice Chandrachud observed that, though the dilution of the judiciary's autonomy in the context of making judicial appointments was deemed to be unconstitutional, but the need for transparency in judicial appointments has not been denied and has in fact been specifically acknowledged by some of the learned Judges. The judge added that failure to bring about accountability reforms would erode trust in the courts' impartiality, harming core judicial functions. Transparency and the Right To Information are crucially linked to the rule of law itself, the judge said.

According to Justice Chandrachud, the postulate that independence and accountability are conflicting values is a fallacy. Elaborating it further, the Judge made the following observations:

 47. Judicial independence is defined by the existence of conditions which enable a judge to decide objectively, without succumbing to pressures and influences which detract from the course of justice. To be independent a judge must have the ability to decide ̳without fear or favour, affection or ill will‘. The Constitution creates conditions to secure the independence of judges by setting out provisions to govern appointments, tenure and conditions of service.

These are provisions through which the conditions necessary to secure judicial independence are engrafted as mandatory institutional requirements. These are intrinsic elements of our constitutional design. But constitutional design must be realised through the actual working of its functionaries. Mechanisms which facilitate independence are hence a crucial link in ensuring that constitutional design translates into the realisation of judicial independence. Facilitative mechanisms include those which promote transparency.

For true judicial independence is not a shield to protect wrong doing but an instrument to secure the fulfilment of those constitutional values which an independent judiciary is tasked to achieve. Judicial independence is hence not a carte blanche to arbitrary behaviour. Where the provisions of the Constitution secure a standard of judicial independence for free and impartial adjudication, the independence guaranteed by the Constitution must be employed in a manner that furthers the objective for which it was secured. In the quest for a balance between the freedom guaranteed and the responsibility that attaches to the freedom, judicial independence and judicial accountability converge.

 48......The judiciary, like other institutions envisaged by the Constitution, is essentially a human institution. The independence of the judiciary was not envisaged to mean its insulation from the checks and balances that are inherent in the exercise of constitution power. The independence of the judiciary, is a constitutional guarantee of freedom. Notions of accountability however, concern the manner and ends for which the freedom guaranteed is employed. Where judicial independence focuses on freedom, judicial accountability is concerned with the manner in which that freedom is exercised by the adjudicator.

 53........ Adjudicators in robes are human and may be pre-disposed to the failings that are inherently human. But the law demands that they must aspire to a standard of behaviour that does not condone those failings of a human persona in the discharge of judicial duties.

 57. The executive in a cabinet form of government in accountable to the legislature. Ministers of the government are elected members of the legislature. Collectively, the government is accountable to the legislature as an institution and through the legislature to the people.

Unlike the elected representatives of the people, judges of the district and higher judiciary are not elected. The accountability which the political process exacts from members of the legislature is hence distinct from the accountability of judges who are accountable to the trust which is vested in them as independent decision makers.

Making them accountable in the discharge of that trust does not dilute their independence. The independence of judges is designed to protect them from the pressures of the executive and the legislature and of the organised interests in society which may detract judges from discharging the trust as dispassionate adjudicators. Scrutiny and transparency, properly understood are not placed in an antithesis to independence.

They create conditions where judges are protected against unwholesome influences. Scrutiny and transparency are allies of the conscientious because they are powerful instruments to guard against influences which threaten to suborn the judicial conscience. To use judicial independence as a plea to refuse accountability is fallacious. Independence is secured by accountability. Transparency and scrutiny are instruments to secure accountability.

Judicial independence cannot be used as a byword for avoiding the accountability and criticism that accompanies transparency. Judicial accountability is yin to the judicial independence yang. Although some trumpet judicial accountability as if it were an end in itself, accountability-like independence-is better characterized as an instrumental value that promotes three discrete ends: the rule of law, public confidence in the courts, and institutional responsibility.

The judiciary is an important organ of the Indian State, and it has a vital role in the proper functioning of the State as a democracy based on the Rule of Law. The integrity, independence, and impartiality of the judiciary are preconditions for fair and effective access to justice and for the protection of rights. The judiciary has a vital role to play as a bulwark of the integrity infrastructure in the country.

Failure to bring about accountability reforms would erode trust in the courts‘ impartiality, harming core judicial functions. Further, it also harms the broader accountability function that the judiciary is entrusted with in democratic systems including upholding citizens‘ rights and sanctioning representatives of other branches when they act in contravention of the law. Transparency and the right to information are crucially linked to the Rule of Law itself.

Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved.

The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future. The collegium owes its birth to judicial interpretation. In significant respects, the collegium is a victim of its own birth – pangs. Bereft of information pertaining to both the criteria governing the selection and appointment of Judges to the Higher Judiciary and the application of those criteria in individual cases, citizens have engaged the constitutional right to information, facilitated by the Right To Information Act, 2005.

Written By: Dinesh Singh Chauhan, Advocate, High Court of Judicature, Jammu.
Email: [email protected], [email protected]