There appears to be a lack of consensus among the judges of the Supreme Court Collegium as regards the publication of the body’s resolutions, according to ET.
The report suggests that Justices Madan Lokur and Kurian Joseph – the fourth and fifth seniormost judges of the apex court – have written letters to Chief Justice of India Dipak Misra expressing their reservations against the move.
On October 6 this year, the Collegium had decided to publish its resolutions on judicial appointments, with a view to introducing greater transparency in the appointment process. Elevations and non-appointments to various high courts have since been uploaded on the Supreme Court website.
However, it has now come to light that Justices Lokur and Joseph, whose names appear at the end of the October 6 notification, did not agree with move, ostensibly implemented by CJI Misra. According to them, the rights of persons mentioned in the resolutions ought to be weighed against the goal of transparency.
The letter written by Joseph J a day after the decision was made public reportedly states,
“…you have in breach of the trust reposed in you, in violation of the mandate of the resolutions and in total defiance of the request of your sister and brother judges, chosen to upload the text of the resolutions which contained information which might violate human rights of some persons, if not other rights, who are still to continue as judicial officers…”
Justice Lokur, who wrote to CJI Misra after discussing the issue with fellow Collegium judges Joseph and Ranjan Gogoi JJ, is reported to have conveyed in his letter,
“This is to request you to kindly initiate further discussions on the subject. While no one has any objection to any transparency, issues of confidentiality are equally important and it is necessary to balance them.”
Further, the report states that no consensus was arrived at on the Full Court meeting held on October 5, and that Lokur and Joseph JJ were asked to deliberate on the issue. Justice Joseph’s letter goes on to say,
“If three out of five of the collegium request you to have further discussions on the issue, are you not bound by such request?…All of us are seriously interested in transparency. But should we also not respect the rights of others affected by our attempt to be transparent? Have we not in the history of the collegium, where you are a member, made such revisits?”
Senior lawyers had also expressed similar concerns to Bar & Bench. Senior Advocate Harish Salve was quoted as saying,
“If the names of those considered and rejected are made public, it will be an unmitigated disaster. The appointments to the High Court are from the subordinate courts. A rejection would result in criticism of the judge being made public. He would have to resign. Worse – those high court judges who are not elevated to Supreme Court. A litigant will be entitled to demand that his case not be heard by a judge found unfit for elevation.
Secondly, the reasons for rejection would never bear scrutiny. They will undoubtedly be challenged – cannot fathom the consequences.”
This sentiment was echoed by Senior Advocate KV Viswanathan, who said,
“…where a candidate is not elevated after being in the zone of consideration, the reasons should not be uploaded. Complaints against them would be untested and may cause irreparable damage to their reputation.”