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Truth and openness, no matter how uncomfortable, are better than gossip

Former SC judge Justice Ruma Pal tells Arghya Sengupta why she believes there’s merit in Justice Chelameswar’s insistence on the collegium making public its reasons for selecting someone as a judge

Justice Ruma Pal, a former Supreme Court judge, says the collegium was formed to ensure transparency and that primacy of judges cannot be a cover to duplicate the secrecy that characterised previous appointments by the executive. Excerpts…

Your view on Justice J Chelameswar’s comments on the need for transparency in the collegium

Justice Chelameswar is asking for nothing more than what was laid down in the Second Judges’ Case (1993), that reasons for decisions to appoint need to be recorded. One reason the collegium was set up was to ensure the process could be more transparent. Recording reasons is fundamental to transparency . This is the standard the judiciary requires of others. Justice Chelameswar is justified in saying that it should follow the same standard.
What urgent reforms does the collegium need?

Most important is the laying down of objective criteria and recording of reasons in accordance with such criteria. While there is subjectivity in any selection, recording of reasons, as per established criteria, is a necessary safeguard to ensure sub jectivity isn’t a guise for a decision on extraneous considerations. I don’t believe the laying down of reasons is antithetical to the cause of those not selected.A person may be competent to be an competent to be an HC chief justice but not be ready to lay down the law by becoming an SC judge. I see no reason why such a person’s non-selection would reflect on his ability to function as an HC chief justice, as long as no negative remarks are made about him.

Does the prospect of elevation to the SC affect the attitude, behaviour, manner of judging of HC judges?

Whether it does or doesn’t isn’t the issue. The issue is that it can. If one is inclined that way , one would pass a judgment that wouldn’t rock the boat, so that one’s chances of elevation to the SC isn’t jeopardised.The solution to the problem, which will remain irrespective of whether the power of appointment is with the collegium or the government, is systemic. The retirement age difference of HC and SC judges must go. The original reason for providing additional tenure to SC judges (up to 65 years) was to incentivise fine HC judges to leave their hometowns for Delhi. This reason is no longer valid. If the age difference is removed, the expectation of looking towards the SC for additional tenure will substantially reduce.

Could the NJAC have rectified some of these ills?

I’ve always been in favour of a judicial commission. This is neither an original thought, nor a recent one. Justice Bhagwati in the First Judges’ Case (1981) said so. Justice D A Desai, as Law Commission chairman in 1987, said so. Chief Justice Venkatachalaiah reiterated it in the report of the National Commission to Review the Working of the Constitution. None of them is a member of government. The only difference between the NJAC and these enumerations was over who would be part of the commission. The SC has often made the Law Commission’s recommendations binding in other cases. It should have considered this history more seriously in the NJAC case too. Safeguards could have been incorporated where it felt judicial independence might be compromised.

SC says primacy of judges is paramount and the NJAC compromised it…

If the whole proceeding is recorded and there’s transparency with public scrutiny , primacy of judges can be accorded. But primacy cannot be a cover to duplicate the secrecy that characterised previous appointments by the executive. This fear that surrounds transparency is overblown. Take the disclosure of judges’ assets. When it was suggested that judges must disclose assets, it created a hue and cry . Now it takes place as a matter of course.There’s no reason why collegium meeting minutes being made public wouldn’t become a non-issue too. It’s been made an issue among a particular group of people. Truth and open ness, no matter how uncomfortable, are better than gossip, imagination or rumour. They destroy judiciary’s credibility far more than the truth.
Is it possible in the current climate to reform the collegium without letting the government affect the judiciary’s independence?
Justice Chelameswar says decisions to appoint should be taken by circulation. Why a person is selected or not should be on record. If someone has changed one’s mind on an appointee, the reasons should be known. For these and similar changes, there’s no reason for the court to agree to a Memorandum of Procedure with the government.It’ll be in the judiciary’s interest to do so itself. In a full court, judges can lay down objective criteria, as was done in the case of laying down the Restatement of Values of Judicial Life, so that everyone knows the internal process and criteria to be followed for selection. This will allay suspicions that people are chosen for reasons other than merit without affecting the judiciary’s independence.

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