Law Minister Kiren Rijiju’s criticism of the Supreme Court Collegium for publishing excerpts of “secret” Research & Analysis Wing (R&AW) and Intelligence Bureau (IB) inputs on candidates under consideration sharply contrasts with the Centre’s push for transparency in the judicial appointments process during the National Judicial Appointments Commission (NJAC) case eight years ago.
The NJAC judgment records how the government lampooned the Collegium system for its secrecy while arguing that the NJAC would “bring about critically desirable transparency, commitment and participation of the ultimate stakeholders - the people”.
In fact, the October 2015 judgment saw the Constitution Bench acknowledge that “transparency is a vital factor in constitutional governance”, but also cautioned the government that “transparency is not a one-way street”.
During arguments in the NJAC case, the government had faulted the Collegium for being ”extremely secretive” to the extent that “no one outside the Collegium or the Department of Justice is aware of the recommendations made by the Chief Justice of India for the appointment of a judge of the Supreme Court or the High Courts”.
“Civil society has the right to know who is being considered for appointment,” the Attorney General had submitted in the NJAC case. The NJAC verdict even quoted judgments produced by the government to prove its case that “people have a right to know”.
Mr. Rijiju has also said that the government, not judges, are accountable to the people. The remark was made amidst the ongoing acrimony initiated by the government over judicial appointments.
The counter to the Law Minister’s view can be found in the verdict of a nine-judge Supreme Court Bench in the ‘Second Judges Case’. Nearly 20 years ago, in October 1993, the court had called the government’s pitch for primacy in judicial appointments on the ground that it, and not judges, were accountable to the public an “easily explodable myth”, a “bubble which punishes on a mere touch”.
Justice J.S. Verma, in his judgment endorsed by four other judges on the nine-member Bench, had observed that “accountability of the executive to the people in the matter of appointments of superior judges has been assumed, and does not have any real basis”.
“There is no occasion to discuss the merits of any individual appointment in the legislature on account of the restriction imposed by Articles 121 and 211 [restriction on discussing official conduct of Supreme Court and High Court judges in Parliament/Legislature]. Experience has shown that it also does not form a part of the manifesto of any political party, and is not a matter which is, or can be, debated during the election campaign. There is thus no manner in which the assumed accountability of the executive in the matter of appointment of an individual judge can be raised, or has been raised at any time,” Justice Verma had reasoned.
On the other hand, the Chief Justice of India and the Chief Justices of High Courts concerned have to face the consequence of an unsuitable appointment, the 1993 verdict had pointed out.
“The controversy will be raised primarily in the courts. The judges of the Supreme Court and the High Courts, whose participation is involved with the Chief Justice in the functioning of the courts, and whose opinion is taken into account in the selection process, bear the consequences and become accountable,” the court had reasoned in 1993.