Open up the Supreme Court Editorial 9th Apr’19 TheHindu

Headline : Open up the Supreme Court Editorial 9th Apr’19 TheHindu 

Details : 

Delhi HC judgement said RTI applicable to higher judiciary:

  • In 2009, the High Court of Delhi handed down a landmark judgment dealing with the Right to Information (RTI) Act.
  • It held that the Office of the Chief Justice of India (CJI) was a “public authority”, and therefore, subject to the provisions of the Act.
  • Information held by the CJI — including, in the context of the case, information about judges’ assets — could be requested by the public through an RTI application.

But SC stayed it:

  • When the case reached the Supreme Court, a stay was granted.
  • In April, 2019, a five-judge Bench of the apex court finally heard the case on merits, and reserved judgment.
  • Expansion of issues under consideration:
    • By this time, the issues under consideration moved beyong Delhi HC’s ruling on the status of the Chief Justice as a public authority and the disclosure of judges’ assets.
    • It also involved the question of whether the correspondence of the Collegium was subject to the RTI.

Various aspects:

  1. Office of CJI and higher courts should be subject to RTI:
  • The answer to the basic question, i.e. whether or not the Office of the CJI is subject to the RTI Act, is a clear yes.
  • The Delhi High Court judgment noted that, “all power — judicial power being no exception — is held accountable in a modern Constitution”.
  • A blanket judicial exemption from the RTI Act would defeat the basic idea of “open justice”.
  • The courts are powerful organs of state, and their workings have to be as transparent and open to public scrutiny as any other body.
  • Some private information could be withheld as per RTI Act itself:
    • It would be incorrect to say that bringing the judiciary under the RTI Act destroys the personal privacy of judges.
    • The RTI Act itself has an inbuilt privacy-oriented protection, which authorises withholding the disclosure of personal information unless there is an overriding public interest.
    • For example, disclosure of assets is arguably justified by an overriding public interest, but information related to medical details or marital status need not be revealed.
  1. Correspondence of the Collegium:
  • The most complex issue regarding information from the judiciary involved the disclosure of the correspondence of the Collegium.

Collegium and its working:

  • India is one of the few countries where judges have the last word on judicial appointments, through the mechanism of the Collegium.
  • The Collegium includes the five senior-most judges of the Supreme Court, who collectively constitute the selection panel for judicial appointments to the Supreme Court (and the three senior-most judges when it comes to the High Courts).
  • The Collegium itself is not mentioned in the text of the Constitution: it arose out of a judgment of the Supreme Court, and in response to increased executive interference in judicial appointments.
  • The Collegium system of appointments arose, therefore, as a tool to secure and guarantee the independence of the judiciary.

Collegium system facing criticism:

  • However, the Collegium has come under increasing criticism.
  • A major point of critique was its opacity: it was increasingly being perceived that judicial appointments were too often made in an ad hoc and arbitrary manner.
  • For example, certain lawyers were ruled out from being recommended to High Court judgeship because of being in a live-in relationship without being married.

More transparency promised:

  • In 2015, the Supreme Court struck down a constitutional amendment establishing a National Judicial Appointments Commission (NJAC), which would have replaced the Collegium.
  • However, the apex court vowed to evolve a system where concerns of transparency were addressed.
  • A small step towards this was made in the recent years, when the resolutions of the Collegium began to be published online.

Fears that disclosing correspondence of collegium would destroy Judicial Independence:

  • During the arguments of the case related to judiciary and RTI, the Attorney-General of India (AG), who represented the Supreme Court before the Constitution Bench, argued that disclosing the correspondence of the Collegium would “destroy” judicial independence.
  • The CJI who was hearing the matter also agreed, noting that disclosing the reasons for rejection of a judge would “destroy” his or her life or career.

Such fears are unjustified:

  • This line of argument is difficult to accept.
  • It was first argued that only collegium system can secure judicial independence by ensuring judicial primacy in the appointments process.
  • Once that is done, it is unacceptable to then argue that the only permissible way in which this system can work is by making it immune to transparency.

Court must be transparent and accountable as it controls all appointments:

  • If the SC has instituted a process of appointment that makes itself the final arbiter of judicial appointments, then it must also ensure that that same process meets the standards of accountability in a democratic republic.

Transparency in judicial appointments is a feature of all major democracies:

  • A look at judicial appointments elsewhere suggests that transparency in appointments is integral to the process.
  • In the United States, for example, candidates for judicial appointments in the federal judiciary are subjected to public confirmation hearings by the Senate.
  • In Kenya and South Africa, the interviews of candidates taken by judicial appointments commissions are broadcast live.
  • The public, thus, is in a position to judge for itself the selection process.
  • This is crucial to maintaining public faith in the impartiality of the institution.

Collegium cannot be above scrutiny:

  • The Collegium in India has immunised itself from any form of public scrutiny.
  • The nomination process is secret, the deliberations are secret, the reasons for elevation or non-elevation are secret.
  • This creates an extremely unhealthy climate, in which rumours are rampant about judicial integrity as well as executive interference.
  • What truly destroys an insititution like the SC is not transparency but erosion of trust due to lack of it.

Conclusion:

  • The Collegium’s recent decisions to recommend a set of names for elevation, and then hastily backtrack on them without any publicly stated reasons, dealt a serious blow to its reputation for impartiality and independence.
  • The only way to salvage this is to open up the court.
  • A judiciary that is confident of itself and of its place in the democratic republic should not be worried about subjecting judicial appointments to public scrutiny.
  • The occasional discomfort that might come from the harsh public scrutiny is more than outweighed by the cleansing value of transparency.

Importance:

GS Paper II: Polity

Section : Editorial Analysis 

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