Why collegium system must embrace more openness, not less

“I am Khan, but not a terrorist.” It was a statement of a senior advocate from Madurai on hearing his name was dropped from the panel recommended for judgeship at Madras high court. His name was proposed by the then HC chief justice but GoI shared reports received from the intelligence agencies and raised certain objections. The Supreme Court collegium rejected his name, triggering a response from the hurt advocate. Normally, when names are recommended for judgeship by the HC collegium, the SC collegium first considers the opinion of the judge who hails from that state (consultee judge) and thereafter proceeds to decide the matter. On such occasions where GoI wants to input, reports received from intelligence agencies will be shared with the court. In this case, an IB inspector tasked with a background check reported that the lawyer concerned, a Muslim, was making Zakat donations to various madrasas and mosque committees. The report added that he may be a religious fundamentalist, with connections to separatists. The report also stated that the lawyer concerned was instrumental in filing a public interest litigation in his own name challenging the publication of photographs of Muslim women in electoral rolls. That case was dismissed by a division bench of the Madras HC, but prominently reported. The name of that petitioner was similar to the advocate whose name was recommended for judgeship. It was enough for an inaccurate IB report, derailing the chance of a lawyer recommended for judgeship. Collegium’s blind spot Under the 3rd judges case (1998), when the collegium system was introduced, the consultation process provided for GoI inputs, if necessary. It includes intelligence reports. The collegium does not have a system by which such information can be checked. Thus a good advocate lost his chance to become a judge despite a unanimous recommendation by HC. That was not the first time when damage was done solely based upon hearsay and unsubstantiated allegations. When Madras HC Chief Justice Vijaya Tahilramani was abruptly transferred to Meghalaya in August 2019, no one knew the reason. Subsequently, the autobiography of the then CJI Ranjan Gogoi said that a petition received from ‘Traffic’ Ramaswamy, a social activist, was the basis of transfer. Justice Tahilramani did not accept the transfer and put in her papers. Gogoi wrote that the matter was sent to CBI for investigation and the agency concluded there was no case. Who paid the price? Opaque selection system The question of whether the inputs given by the intelligence agencies are strong enough to reject a name is upon the collegium. It’s for them to givereasons. Putting collegium recommendations on SC website was initiated by CJI Deepak Misra, but later given up by SA Bobde. Thereafter, only the operative portion of the recommendation was uploaded. It’s interesting to note the dissenting opinion given by Justice J Chelameswar in the NJAC case, wherein he said, “It is a matter of public record that in the last 20 years, after the advent of the collegium system, a number of recommendations made by the collegia of the HCs came to be rejected by the SC collegium. There are also cases where the collegium of this Court quickly retracted its steps having rejected the recommendations of a particular name made by the HC collegium giving scope for a great deal of speculation as to the factors which must have weighed with the collegium to make such a quick volte face. Such decisions may be justified in some cases and may not in other cases. There is no accountability in this regard.” Collegium’s right in being open If names are to be rejected based upon unsubstantiated intelligence inputs and SC has no mechanism of verifying their veracity, then many will stand condemned without being heard. That will be gross injustice to any person who aspires to become a judge of the higher judiciary. When the intelligence inputs to reject the names of Somasekhar Sundaresan, R John Sathyan and Saurabh Kirpal on rank political grounds were given by GoI, SC collegium did a yeoman service rejecting them and also putting it out in the website. The court emphasised the basic principle in the matter of public employment and stated: “All citizens have the right to free speech and expression under Article 19(1)(a) of the Constitution. Expression of views by a candidate does not disentitle him to hold a constitutional office so long as the person proposed for judgeship is a person of competence, merit and integrity.” This echoes the view of Justice Chinnappa Reddy who said: “Politics is no crime. Does it mean that only True Believers in the political faith of the party in power for the time being are entitled to public employment?” He added that ‘McCarthyism’ has no place under the Indian Constitution. The writer is a retired judge of Madras high court