Almost three months after the October 3 decision, it has come to light that two senior judges of the Supreme Court – Justice Madan B Lokur and Justice Kurian Joseph – had written to the Chief Justice of India, Dipak Misra, seeking further discussion and the need to respect the rights of others affected by the attempt to introduce transparency.
'The decisions henceforth taken by the Collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India, with regard to the cases relating to initial elevation to the High Court Bench, confirmation as permanent judge(s) of the High Court, elevation to the post of Chief Justice of High Court, transfer of High Court Chief Justices/ Judges and elevation to the Supreme Court, because on each occasion the material which is considered by the Collegium is different,' a note posted on SC website had said.
The 'resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system,' it had said heralding an era of transparency in judicial appointments that was welcomed by activists.
The October 3 decision taken by the SC Collegium comprising CJI Misra, Justice J Chelameswar, Justice Ranjan Gogoi, Justice Lokur and Justice Joseph was made public on October 6, amid severe criticism of the Collegium for its controversial decision to transfer Justice Jayant Patel of the Karnataka High Court to the Allahabad High Court, leading to his resignation.
The two judges have mainly talked about making public information that might violate human rights of those still serving in the judiciary, sources privy to it said. Many sitting and former judges are understood to have conveyed their apprehension to the CJI in this regard, they added.
Former CJI, Justice KG Balakrishnan, too, had expressed similar apprehension about the possible fallout of the transparency move on candidates rejected by the Collegium.
The reasons for rejection of a name should not be made public. Suppose, a Chief Justice of a high court has been rejected for elevation to the Supreme Court and the reasons for non-elevation are put on the website. It would be difficult for him to continue as a Chief Justice,' Justice Balakrishnan said.
'Similarly, if a senior advocate is rejected for judgeship of a high court; disclosure of the reasons for rejection of his candidature could affect his public standing, reputation and practice. Genuine candidates may not come forward for judgeship for fear of possible embarrassment,' Justice Balakrishnan said.
Judicial appointments in India have traditionally been wrapped in secrecy making it difficult to know about candidates being considered or recommended for judgeship. After creation of Collegium system by the Supreme Court which took over the power to appoint and transfer judges in 1993 through a verdict described by many as a 'judicial coup', degree of opacity increased.