Author: Saif Alam, A student at National Law University, Visakhapatnam
To the point
Accountability and transparency go hand in hand. This research paper highlights the pivotal role of these two as it analyses the judicial appointments from the dual viewpoints of independence and supremacy of judiciary. It emphasizes that judicial appointments should be transparent to preserve the public confidence on the system. The focus is mainly on the recent dissent of Justice B.V. Nagarathna of the Supreme Court in the Collegium’s recommendation to promote Justice Vipul M. Pancholi. This dissent sets an example of the hurdles in the appointment procedure, where judicial autonomy is protected by undermining the judicial accountability. This study also analyses the cases which give the role of appointment of members in higher judiciary to the five senior-most judges. Therefore, highlighting that judiciary should follow the same principles of transparency as it demands from people.
Use of Legal Jargon
The Judicial Standards and Accountability Act, 2013 establishes ethical standards for judges. Right to Information Act of 2005 also participates in the discussions about transparency of the Collegium system which regulates the judicial appointments to the higher judiciary. The judicial independence ensures its sovereignty, but it also undermines the judicial accountability which refers to responsibility of the decisions. The power of dissenting opinions has been discussed by the case with Justice B.V. Nagarathna’s disagreement. Article 124 and 217 of the Constitution govern the appointment and conditions of judges to the Supreme Court and High Courts. Legal concepts such as “autonomy”, “accountability”, and “transparency” build public confidence in judicial processes. Thus, balance autonomy with accountability.
The Proof
The proof of Collegium and its opaque nature comes when it came to be known from the leaks that Justice B.V. Nagarathna of the Supreme Court of India dissented the Collegium’s suggestion that Justice Vipul M. Pancholi be elevated. The dissent makes no mention on the court website and if union government has information about it, is unclear. Thus, it questions the system by which judges are being elected or elevated, when one of the senior-most judges of the apex court may have believed that there must be some substantial reasons to not elevate Justice Vipul M. Pancholi. Even an opposition from a Supreme Court judge is too sensitive that it must not be seen to public, shows the nature of accountability the judiciary holds today.
Two arguments have always been used as the defence of concealing its justifications private, first, that transparency can damage reputation of the nominated candidates who are not chosen, and that judicial system will be exposed to the political pressure. The solution must be to carefully structure disclosure to make reputational harm less painful. The answer cannot be to completely reject the justification. Furthermore, if political pressure has been feared, then concealment has barely stopped it.
Thus, the fact the information of dissent was hidden to public shows the transparency and democratic deficit of the judicial system while not been accountable to the people in whose name it acts.
Abstract
Accountability is essential to democracy, with transparency enabling it. Every government organ must be transparent and accountable to build public trust and confidence. As the guardian of the Constitution, the judiciary holds a vital role and must embody both transparency and accountability to maintain its credibility and uphold democratic principles. The Collegium commenced its communication of resolutions with public in 2017 and in 2018, the Court started posting more thorough justifications for the Collegium’s decisions and denials. The test was, unfortunately, got discontinued.
If we study comparatively, India appears to handle it worse than other democracies. For example, the British Judicial Appointment Commission publicly highlights its standards with its reports outlining the evaluation process for applicants. Even in South Africa, the Judicial Service Commission interviews the applicants for higher judicial positions. Although neither system seems perfect, but they both show transparency which ultimately leads to legitimacy. In contrast, India continues to view the Collegium as an isolated space.
Case Laws
1. S.P. Gupta v. Union of India (1981)
– This case marked one of the earliest decisions asserting judicial independence from executive domination in appointments and transfers. S.P. Gupta v. Union of India, also called “The Judges’ Transfer Case”, is a landmark case that highlights judicial independence as a feature of judiciary. The Supreme Court ruled that the Chief Justice of India (CJI) and pertinent judges must be consulted to ensure transparency in the appointment and transfer procedure of the judges. Although it acknowledged the role of the executive, it still maintained the independence and primacy of the judiciary. It laid down the foundational principles that were later transformed by the Second and Third Judges Cases into the Collegium system because this case did not provide a complete solution to opaqueness of judiciary, thus, leaving a room for future judicial reforms. It also establishes judicial review of executive actions within the judiciary, the groundwork for judicial accountability and later, also influenced collegium-based reforms.
2. Second Judges Case (1993)
– This case arose out of the tussle between the judiciary and executive over appointments after the First Judges’ Case (1981), in which the executive had more authority, disagreements over appointments. It highlights the transformation of judicial appointments in India which established that the Chief Justice of India (CJI) must have the “primacy of opinion”. To minimize the executive interference and to increase the judicial independence, transparency and collective decision-making, the Supreme Court created the Collegium system, in which the senior Supreme Court judges and CJI jointly recommend appointments. It strengthened the judiciary’s independence by protecting judicial appointments from the political influence that existed in previous decades.
3. Third Judges Case (1998)
– In this case, the Supreme Court detailed how the Collegium should work and who forms part of it, stressing collective responsibility. It highlights the refinement of the Collegium system which determined that the CJI and the four senior-most judges of the Supreme Court should be the part of the Collegium. Thus, it institutionalized the Collegium system which persists today despite controversy. By strengthening judicial autonomy and striking a balance between the necessity of collective decision-making in the judicial appointment process, this collaborative process sought to improve fairness, transparency, and accountability. On the other hand, the Critics believe that this system gives uncontrolled power in the hands of a small group without formal rules, which sparked the accusations of nepotism.
Conclusion
Democracy is a collaboration between citizens that guarantees equality and liberty while securing rights. According to Suhrith Parthasarathy, Advocate at the Madras High Court, “A judiciary that subjects itself to the same standards of openness it demands of others will only gain greater trust and confidence of the people”. The decisions made by the judges selected today will influence the resolution of India’s most important constitutional issues, which range from civil liberties to the separation of the power between the Union and the States. Institutional legitimacy withers when the public is only told that a judge has been elevated without complete justification or when a sitting Supreme Court Judge’s dissent is concealed. Thus, the appointment procedure for judges must adhere to the highest accountability standards.
FAQS
1. What is Collegium System and why is it criticized?
The Collegium System includes the Chief Justice of India (CJI) and the Senior Judges who recommend judicial appointments. It fosters judicial independence while minimizing executive’s interference. However, its opacity is criticized as evident from Justice B.V. Nagarathna’s undisclosed dissent regarding the elevation of Justice Vipul M. Pancholi. Critics argue that this shrouded justice erodes public confidence in the judicial appointment procedure and accountability.
2. Why are accountability and transparency important in the Indian judiciary?
Accountability and transparency go hand in hand. These aspects build public confidence in the judiciary. By guaranteeing a fair and equitable process, transparency in judicial appointments helps maintain public trust in the system. Judges must balance judicial independence with public expectations by being accountable for their decisions. Since they maintain the judiciary’s legitimacy as ‘The Guardian of the Constitution’, both aspects are crucial to democracy.
3. How does the dissent by Justice B.V. Nagarathna highlight problems in judicial appointments?
The dissent by Justice B.V. Nagarathna in opposition of Justice Vipul M. Pancholi’s elevation highlights the lack of transparency when it was concealed. This concealment implies that judicial autonomy can overshadow accountability, with decisions that impact the judiciary’s composition remain hidden from the public. Such opaqueness questions the appointment procedure’s legitimacy and fairness.
4. Which constitutional provisions govern judicial appointments in India?
Judges of the Supreme Court and High Court are appointed in accordance with Articles 124 and 217 of the Indian Constitution, respectively. The Collegium system, which emphasizes judicial autonomy in appointments while guaranteeing independence and accountability through collective decision-making, is supported by these constitutional provisions in combined with judicial precedents.
5. What reforms are suggested to improve transparency and accountability in judicial appointments?
The reforms include making appointment decisions more publicly available, publishing dissents, and implementing procedures like open interviews and evaluation standards that are common in other democracies like Britain and South Africa. Accountability and public trust can also be enhanced by implementing the Judicial Standards and Accountability Act, 2013 effectively, and increasing compliance with the Right to Information Act, 2005.
Sources
1.https://www.thehindu.com/opinion/lead/concealing-a-judges-dissent-eroding-judiciarys-authority/article70009111.ece
2.https://doi.org/10.52403/ijrr.20230944
3.https://journals.christuniversity.in/index.php/culj/article/view/356/263
