The revelation by senior Supreme Court judge Justice J. Chelameswar that the appointment of judges to the higher judiciary is surrounded in mystery - though not new - has once again raised questions about the "opaque functioning" of the collegium system.
The lack of transparency in the decision making process of the collegium was one issue that was repeatedly raised in the past and adversely commented upon.
There were demands in the past, and even now, that the appointment of judges to the higher judiciary should be transparent and criteria based and the entire system should be put under the light.
There are very few who differ with Justice Chelameswar.
As senior counsel Shekhar Naphade says, "He has a valid point that the entire functioning is opaque.
There are no minutes, no place for dissenting note and no transparency. "
This is a view backed by another senior counsel Sanjay Hegde who says that the October 16, 2015, NJAC (National Judicial Appointments Commission) judgment too had recognized the need for transparency.
"One of the basis of transparency is to ensure that the decisions are debated in writing as one of the methods, " Hegde told IANS, pointing out that Justice Chelameswar has correctly highlighted the concern, and "I would expect that the institution as a whole come up with an informed and coherent response. "
Was it early for Justice Chelameswar to raise the issue at this moment when the top judiciary and the Modi government are locked in a tussle over the drafting of the memorandum of procedure for the appointment of judges to higher judiciary?
Without being judgmental on the point, Naphade appreciating the point flagged by Justice Chelameswar, told IANS: "If he has serious reservation about the procedure, then procedure is not finalised.
There is a tussle between the top judiciary and the government on the issue. "
Would Justice Chelameswar's decision to stay away from the meetings of the collegium adversely affect the finalisation of names of judges for elevation to the top judiciary and the transfer of judges in the high courts?
Shekhar Naphade says, "As law stands today he is a member of the collegium and he has to participate in it.
It is not a judicial function, it is an administrative function. "
However, Naphade does not think that if Justice Chelameswar decides to stay away from the meeting of the collegium, then appointment of judges to the top court or transfers of high court judges would come to a standstill.
Describing it as "unfortunate", Naphade regrets that such an issue has come into the public domain.
There is a general belief that such things damage the image of the institution.
"I don't think so, " says Naphade allaying the apprehension that the judicial appointment process would come to a standstill.
Saying that the collegium rests on "collegiality among all the judges" and preservation of collegium system is now an imperative after the NJAC judgment, Hegde in a note of caution, says "There may be a time when too much of transparency becomes counter productive, especially in the cases of those who are ultimately not elevated further. "
Bishwajit Bhattacharyya, a senior counsel who had fought against replacing the collegium system by NJAC, told IANS: "Justice Chelameswar has simply articulated his views which were also reflected in his judgment of October 16, 2015. "
Expressing "hope and optimism" that a solution would emerge soon in the best interest of the independence of the judiciary, Bhattacharyya says that the collective wisdom of the top court judges would "protect the independence of judiciary, which is sine qua non for the survival of a vibrant democracy in India".
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