“Mass transfer” by the Collegium: Transparent much?

Just over four months ago, a Constitution Bench of the Supreme Court of India struck down the proposed National Judicial Appointments Commission (NJAC). The decision was seen as one of the most significant judgments in recent times, and provoked strong reactions across the board..More than a thousand pages long, some argued that the judgment was a victory for the independence of judiciary. Others, however, believed that the decision reeked of Constitutional incorrectness besides relying heavily on anti-government rhetoric to justify the final verdict..And though the significance of the NJAC being struck down was not lost on me, it was an altogether a different part of the judgment that drew my attention. The court invited suggestions for bringing in greater transparency to the functioning of the Collegium system, a move which was unprecedented and hailed as a genuine effort to correct the flawed Collegium..The debate of judicial appointments has always been a debate surrounding transparency. People who say that Collegium system is opaque speak the truth as there is absolutely no indication of when the Collegium will meet, what would be the agenda for the meeting or when appointments will be announced. The level of conjecture would be comical but for the fact that these are appointments to posts of great significance..It was no surprise that Justice Madan B Lokur, in his concurring judgment in the NJAC case, minced no words in stating the obvious when he recorded the following:.“Under the circumstances, in my opinion, we need to have a ‘consequence hearing’ to assist us in the matter for steps to be taken in the future to streamline the process and procedure of appointment of judges, to make it more responsive to the needs of the people, to make it more transparent and in tune with societal needs, and more particularly, to avoid a fifth judges case.”.One of the major reasons for raising cudgels against the Collegium system was its opaqueness. What transpires inside the closed doors of the Collegium invariably remains clandestine till a few senior scribes manage to access the details of elevations and transfers. Even the judicial clerks or interns who attend the Collegium meetings to assist the judges or to record the minutes are sworn to secrecy..The NJAC judgment was going to change all that. Or so I had presumed..However, a few futile hearings later and a remand of the matter back to the Executive to amend the Memorandum of Procedure concerning judicial appointments, nothing much seems to have changed..Last week, just before the JNU controversy hit the headlines, newspapers were filled with reports of “mass transfer of judges” of various High Courts. It is true that the Collegium was concerned by the burgeoning vacancies in High Courts across the country apart from complaints about judges and while it cannot be faulted for acting, it is the manner in which the Collegium has acted (and has been acting for the past 20 years) that leaves a lot to be desired..Deccan Chronicle reported that.“Chief Justice of India TS Thakur has cracked the whip on errant and deviant judges by ordering a mass transfer…”.The NDTV report called it,.“the toughest punishment the collegium can give, since judges can be removed only by Parliament thorough impeachment..The decision was taken after the collegium – the judges’ body that appoints judges – met recently and examined complaints of corruption, inefficiency, misconduct and nepotism.”.The exact figures are still unclear but what emerges from these reports is that judges of different High Courts have been transferred, and that some of these transfers are a repercussion for their judicial or general conduct. But is that the reason for all transfers? Who are these judges and what are these allegations of judicial conduct – all of it remains completely hidden from the public gaze..The discussion in legal circles about two judges in particular just goes on to magnify this point, the two being Justice CS Karnan and Justice Rajiv Shakdher..Justice Karnan’s maverick ways and over the board reactions have been inviting criticism for some time now. While different CJIs were flooded with complaints in the past few years against Justice Karnan, there was no action by the Collegium; till now..He is now reportedly being shunted to Calcutta High Court, a move which has been applauded by the legal fraternity at large..Justice Shakdher’s transfer, on the other hand, has taken most people by surprise. Shakdher J. had developed a reputation as one of the finest judges in the Delhi High Court and his transfer to Madras High Court is being dubbed as a great loss for Delhi..Even senior lawyers are perplexed at this move, and are outright in their opinion that both the judges don’t belong to the same club. They argue that Justice Shakdher’s transfer does not reflect his performance as a judge. Yet the transfer gives that very impression. Selective leaks to media houses have left the public in the dark about just why these transfers are taking place..While it is true that proposed transfers will be effective only after the approval by the Executive, the same is only a mere formality. The Collegium should either have exercised complete discreetness till the approval from the Law Ministry came through or it should have put out in public domain (by publishing on the website of the Supreme Court) the details of the transfer in keeping with the spirit of its own judgment of October 18, 2015..It was not just nonchalant but also imprudent on the part of the Collegium to effect such mass transfers in the manner it has done – without publishing the details and by feeding incomplete information to media..If the apex court is indeed keen on introducing transparency within the system, here are some of the steps it can resort to:.Publish the details of a proposed Collegium meeting and the agenda for the meeting on the website of Supreme court of India;Publish the decision taken by the Collegium regarding the names and other details of judges appointed/ transferred on the website of Supreme Court of India.If the same cannot be published before approval from the Ministry of Law and Justice, ensure that incomplete/misleading information is not leaked out.Publish the approval/disapproval of the Law Ministry regarding the decision of the Collegium on the website of Supreme Court of India.