Right to Information & The Collegium System in India

‘Collegium System’ – Introduction & Working

Let us start by understanding what exactly the ‘Collegium System’ is all about.

This system is an ‘opaque system’, the function of which is to deal with the following decisions as listed below: -

1. Appointment / Elevation of Judges or Lawyers to The Supreme Court of India
2. Transfer and Appointment of Judges of High Courts and Supreme Court

This is to be decided by a quorum led by The Chief Justice of India along with four of the most senior Judges of The Supreme Court of India. The function of the ‘Collegium’ is to decide as to who is the best man for the job and appoint them accordingly. This is a system whereby ‘Judges appoint Judges’.  It is noteworthy to mention that the ‘Collegium System’ is nowhere mentioned in the Original Constitution or in its successive amendments. It is a system formed by way of precedents famously known as the ‘three judge’s case’

Working of the Collegium

The Central Government shall send names of candidatures they think are fit to the ‘Collegium’ on the other hand; the ‘Collegium’ shall also send names of people they think are deserving. A file is thereafter created by the ‘Collegium’ and is sent to the Central Government for approval. The Central Government thereafter resends the file after investigating the names and doing proper fact checking of the same. This file contains suggestions for the ‘Collegium’ to rethink and reply to the same.

What is important to be noted here is that the above appointment of Judges is very similar to the process of passing of a bill in the parliament. I shall tell you how. The next paragraph in this blog will show you similarity between the two.

The recommendation made by the ‘Collegium’ is binding on the Central Government of India. Interestingly if the ‘Collegium’ does not accept the suggestions of the Government and resends the file with the same name for the second time, the Government is bound to give its assent.

The Three Judges Case – Evolution of the ‘Collegium System’

As has been discussed above that the ‘Collegium’ did not evolve through a parliamentary act or any constitutional provision. It evolved by way of precedents, famously known as ‘The Three Judges Case’.

The First Judges Case of 1982 – The Court had held in this case that any sort of consultation for the purpose of appointment of a Judge cannot mean concurrence. It is merely exchange of views between people with reference to a common subject matter of decision.

The Second Judges Case of 1993 – Overturning its earlier decision, the Court opined that consultation would mean concurrence. It ruled that the advice of the Chief Justice of India ‘CJI’ after consultation with two of his senior most colleagues will be binding on the President of India.

The Third Judges Case of 1998 – The Court opined that consultation in plurality was required and hence there should be a ‘Collegium’ consisting of four of the senior most Judges of the Apex Court along with the CJI.

The CPIO v. Subhash Chandra Agarwal

The case started when ‘Subhash Chandra Agarwal’ who is an activist filed a ‘RTI’ application with the Central Public Information Officer ‘CPIO’.

The information sought by Mr. Agarwal was about the disclosure of the notes of the ‘Collegium’ with regards to appointment/elevation of three Supreme Court Judges namely – Justice R.M. Lodha, Justice H.L. Dattu and Justice A.K. Ganguly. It was alleged that the appointment / elevation of the above – named Justices superseded the ‘all India Seniority’ of Justice A.P. Shah, Justice A.K. Patnaik and Justice V.K. Gupta which was allegedly to be objected by the Prime Minister.

Mr. Agarwal was curious to know that if the ‘all India Seniority’ has been bypassed then the same should have some merits and as such filed a ‘RTI’ to know whether the ‘Collegium’ had preferred merit over seniority or whether the opaqueness of the ‘Collegium’ which is in itself an informal system has corruption. The Lawyer who stood by the side of Mr. Agarwal was no other than eminent personality ‘Prashant Bhushan’. Ld. Advocate Prashant Bhushan asked some really tough questions to the bench. He even went on to point one of the most important aspects that the issue was with regards to the subject matter of the ‘Apex Court’ and thus hearing of the present should not have been conducted by the Supreme Court of India. The fact that this case is being heard by the ‘Apex Court’ is solely due to the ‘doctrine of necessity’

View of the Supreme Court

Now, before understanding the view of the Supreme Court it is important for the readers to know about a history of this topic. It is till 2015 an Act, namely the ‘National Judicial Appointments Commission Act’ (NJAC) was the process of appointment / elevation / transfer of Judges. However, after 2015 the Apex Court rejected the same by was of its 99^th Constitutional Amendment terming the above stated Act to be unconstitutional and detrimental to the independence of Judiciary.

Now, coming back to our case

It was a five Judge Constitution Bench presided by CJI Ranjan Gogoi who led the proceedings in the above stated matter. The issues were as follows

1. There was a demand for the correspondence between the Collegium and the Government.
2. There was a demand for the declaration of Assets held by Judges to be brought under the RTI.
3. The disclosure of the name of the Union Minister who was alleged trying to influence Justice Raghupaty of the Madras High Court.

The Supreme Court decided to uphold the 88 pager judgement of the Delhi High Court and passed a judgement not in favour of Mr. Agarwal. As a result of which the office of the CJI is under the purview of the RTI but the ‘Collegium’ remains unaffected. Its opaque nature is still covered and the process it unknown. The rejection of NJAC completely gave the privilege to not publish the data and reasons. This decision was taken by giving reasons of privacy and security and also that if reasons of appointments are made public then it would not be in consistency with the ‘independence of judiciary’.

In the opinion of the registry of the Supreme Court, disclosure of such highly confidential information such as that of the ‘Collegium’ to be brought under the purview of the ‘RTI’ would be harmful to the functioning of the judiciary.

What was shocking is that the bench which presided of future CJI’s shut down the hearing by stating that there is nobody who wants an opaque system, but the judiciary cannot be destroyed in the name of transparency.

Conclusion

In my honest opinion, I do believe that the ‘NJAC’ was struck off to protect the judiciary from any sort of executive interference. This however in no way meant that the Judiciary shall remain free from ‘Public Scrutiny’.

The independence of the Judiciary is an ‘independence from interference’ and not ‘independence from accountability’. Both of them is not the same and by having an opaque system of appointments it would not be wrong to say that a pool of the most eminent people from the Judicial System get unwarranted immunity over selection procedures due to the fact that firstly no one knows it and secondly no one can question it.

The ‘Collegium System’ till date remains an informal system which gained mileage by way of precedents.

The ones who have read Jurisprudence can relate to this that when we talk about what over rules the other then we are clear on a part which is that a statute is always of a higher value than that of a precedent. ‘RTI in this case is a statute’.  On the other hand, the Supreme Court of India has not even bothered to formalize the concept of ‘Collegium’. Bringing transparency to such opaque structure shall have a lot of consequences. They work in the shadows with a system not transparent enough to validate their decisions.

“It is a camouflage protecting its very own, not letting others know that, what is unknown”.