Volume-5, Issue-8, August - 2016 • ISSN No 2277 - 8160 IF : 3.62 | IC Value 70.

36

Commerce
Original Research Paper Law
Right to Information and Appointments of Judges: An
Appraisal

Dr. Manish Kumar

Introduction of justice is to have the judiciary independent from both other areas
Judiciary is one among the three organs of the State as envisaged in of government and also private influences.
the scheme of our Constitution and has a unique role to play in com-
parison to the executive and the legislature, which are the other two Voyage of Judicial Appointments in India
organs of the State. Under the scheme of our Constitution judiciary Before NJAC was introduced through Article 124A, Indian Constitution
is assigned much important role. The independence of Judiciary is allowed appointment of Judges after consultation with such judges of
of vital importance as Judiciary performs the unique function of up- the Supreme Court and of the High Courts in the States as the Presi-
holding constitutionalism- rule of law, separation of powers, etc. and dent may deem necessary for the purpose4. This system worked well
at the same time enforces the laws made by the legislature and the for a long time, until the 1970s. The situation during National Emer-
executive (in the form of ‘delegated legislation’). Here, Independence gency, the prologue and epilogue witnessed a heavy tussle between
means to function without fear or favor, and without committing al- the Judiciary and the Political-Executive. One instance is when Justice
legiance to any internal or external power or influence. Therefore, M.H. Beg was appointed the Chief Justice of India in supersession of
who chooses the judge becomes a highly debated question, and one Justice Khanna who is celebrated for his dissent in ADM Jahalpur v.
which has been a hot topic for decades. While on one hand, we must ShivkantShukia5. Another instance is during 1975-77 when numbers
allow an independent judiciary to function, on the other complete of Judges were transferred from one High Court to another for the
autonomy may not be desirable. mere reason that they had decided against the Government in cer-
tain cases that had ‘political’ aspect to them6. In this particular case,
Transparency in Judicial Administration: Mandatory Justice Sakaichand Sheth, a Judge in Gujart High Court was trans-
The Judiciary is one of the three branches of the Government. As ferred to Andhra Pradesh High Court. He challenged this transfer at
such, it has functions that extend beyond the traditional role of “im- the Gujarat HC through a writ, which the Gujarat MC allowed as the
partial third party” in the resolution of conflicts. Its intervention in the transfer had taken place without any consultation’ of the CJI. Union of
political system could be profound, influencing and sometimes in a India appealed to the Supreme Court, which ensured independence
very sophisticated manner the link between the State and Citizens as of Judiciary when it disposed the case off and assured the Justices
well as the relations between the various social actors. In this context transfer back to Gujarat HC. This ping-pong battle for power between
and given the importance of the judiciary in political and institution- the Political-Executive and the Judiciary can be witnessed further in
al terms, transparency and access to information reforms are relevant numerous judgements such as the Habeous Corpus Case7, Shankari
due to their potential impact on the administrative and jurisdiction- Prasad8,GolakNath9 – KesavanandBharti10. In KesavanandaBharti
al operation of the judicial bodies themselves2.In other words , the the Supreme Court laid down the Basic Structure Doctrine’ (BSD) and
adoption by Judiciaries of transparency reforms could have a positive thus gave a conclusion that no law can alter the basic structure of the
effect on their institutional capacity. Increasing their legitimacy, their Constitution. This doctrine is the unique brainchild of the Supreme
authority vis-a vis other political players and their relationships with Court of India, which is not present in any other democracy.
citizens.
Collegium system
It should also be taken into account that the Judiciary is a key factor The collegium system was established based on the three Judges case
for the consolidation of Rule of Law. The importance of its role is re- and under the collegium system the appointments of judges to the
flected in various indexes and methodologies designed to assess the High Court and Supreme Court are made by the Chief Justice of In-
quality of public institutions and governance. Transparency Interna- dia and four most Senior Supreme Court Judges. The main reasons for
tional’s National Integrity System recognizes the Judiciary as one of the Government wanting to replace the Collegium system were two-
its’ pillars Likewise, several diagnoses have identified the justice sys- fold. One, the system had no Constitutional backing and two, it was
tem as a relevant player in the matters of governance. The Worldwide opaque. There was no amount of disclosure regarding the candidates
Governance Indicators include the Judiciary in the measurements for who would be selected for appointment of judges, the reasons for
the category of “Rule of Law.3” Transparency of Judicial institutions candidates being rejected etc. Even though there was a lot of hue and
and active participation in its processes and responsibility and ac- cry to bring the Collegium system under the purview of the Right to
countability of the judiciary are the key indicators for the evaluation Information Act, 2005, it did not happen. By bringing the collegium
of democratic governance. under the RTI act, it would have ensured transparency and account-
ability. With these issues at hand, the proposal for a constitutionally
Moreover in democratic society, the administration of justice cannot backed body was proposed in the LokSabha. It was accepted by
be isolated from the political and social contexts in which its opera- every member. After the acceptance of the bill in the LokSabha it was
tors act, or take place without effective arrangements for the publicity placed before the RajyaSabha the very next day where again there
both of its administrative operation and its jurisdictional work. In that was almost a hundred percent acceptance. It was the eminent lawyer
sense, a majority of the information produced by the judiciary, like Ram Jethmalani who abstained from voting for the Bill. With this in
that generated by the other government branches, may be requested place, the NJAC act was passed in 201411.
by any individual under the right to freely access public information
and to control the exercise of public powers in the performance of National Judicial Appointments Commission
their functions. There is an inalienable relationship between efficacy The National Judicial Appointments Commission was passed to re-
and openness. Efficacy of our courts is due to the open conduct of place the collegium system. It sought to effectively remove the issues
court proceedings. Judges function in open courts and the proceed- and make better the procedure of appointment of judges to the High
ings of a court can be, watched by any member of the public and is Court and Supreme Court of India. While the main issues with the col-
open to scrutiny. Transparency is the hallmark of our judicial system. legium system included transparency and the power of appointing
That is partly the reason why the decisions of courts are generally ac- judges remained with the judges, the NJAC took a more practical ap-
cepted. An important element of the efficient and fair administration proach. The act promoted the relationship between the executive and
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IF : 3.62 | IC Value 70.36 Volume-5, Issue-8, August - 2016 • ISSN No 2277 - 8160

the judiciary. It provided the President the power to reconsider the 5. AIR 1976 SC 1207.
recommendations made by the commission. So essentially, two wings 6. Extracted from autobiography of F.S. Nariman “Before memory fade: An Autobiog-
of the Indian democracy were included in the appointment of judges. raphy” chapter 16,Hay House, 2010, Union of India v Snakal chand Hathimal Seth,
The commission ensured more transparency and accountability, this AIR1977SC2328.
was one of the major changes to be included with respect to the col- 7. 1976AIR1207.
legium system which was opaque and provided no amount of trans- 8. AIR1955 SC455.
parency or accountability. This would ensure that the executive would 9. 1967AIR1643.
also be kept in loop regarding the appointments. Another major 10. 1973 (4) SCC 225.
benefit the NJAC sought to provide was that it would remove the ele- 11. Sameeksha V Salimath, Sanmathi Dayanand & Rajath francis vithayathil, National Ju-
ments of nepotism and favouritisin and appoint candidates based on dicial Appointments Commission: A Comprehensive Review, International Journal for
merit and experience. This was a major step in the interest of justice Legal Developments and Allied Issues (Vol.1 Issue. 4) Page 245 to 253.
when we consider the fact that the collegium system did not always 12. Ibid.
appoint judges based on merit, but certain appointments were based
on factors such as nepotism, favouritism, bribery etc. The benefits of
the NJAC act are many, including a check on corruption and non-ar-
bitrary appointment of judges to the High court and Supreme Court
of India. The non-arbitrary selection was ensured because of the im-
plementation of the power to veto by the members. The Act provides
that if any two members of the commission do not accept a proposal
or a recommendation then that person shall not be recommended for
appointment. These were among the most prominent advantages of
the NJAC over the collegium system12.

Suggestions
1. Accountability and independence of the judicial bodies should
be defined by keeping in view public interest. Judiciary as a
branch of is not only obligated to disseminate the information
it generates in the course of daily operation, but also plays a
prominent role in the effective enforcement of this right. In that
sense judges should respet the same standards in terms of ac-
cess to information as other branches of the government.
2. Any legislation of Indian legislature has binding force on each
organs including judiciary until the same is declared ultra-vires.
As a guardian of Constitution judiciary has empowered only
to check the Constitutionality of particular legislation on well
founded grounds and to interpret the provisions. So long as any
Act stands valid, it must be observed by the judiciary. Same is
true in respect of R.T.I. Act 2005.
3. It should be specified in the Right to Information Act, 2005 that
judiciary being a Public authority is liable for the disclosure of
information. There should be no ambiguity regarding the re-
sponsibility of the judiciary under the Right to Information Act.
4. Draconian law relating to the contempt of Court should be
amended and it can provide defence for the person making any
disclosure against judiciary in good faith.
5. The problem arises when personal and vested interests come in
to play. In the light of past events the judiciary faces an appeal
by the people of the nation to assume responsibility and right-
fully discharge its functions keeping in mind the oath to func-
tion “without fear and favour”.

Conclusion
The right to information is a fundamental right that the State must
enforce and guarantee. The judiciary as a branch of government is
not only obligated to disseminate the information it guarantees in the
course of its daily operation, but also plays a prominent role in the ef-
fective enforcement of this right. In that sense, judges should respect
the same standards in terms of access to information as the other
branches of government. Although there has been some resistance
or lack of interest on the part of judicial institution in accepting said
standards, there is a broad consensus around the concept that the
same requirements apply to them as to the public administration and
therefore they have the obligation to provide access to information
both in connection with their jurisdictional functions. The same is true
with regards to transparency, since the judiciary has to comply with
the same requirements as other state bodies.

References :
1. Assistant Professor at Baba Farid Law College, Faridkot.
2. Alvaro Herrero and Gasar Lopez, Access to Information and Transparency in the Judici-
ary, World Bank Institute Governance Working Paper Series “A Guide to Good Practices
from Latin America”2010. Available on www.adc.org.ar.
3. Rule of Law is defined as the degree of trust bestowed by agents on a society’s rules
and the extent to which they behave accordingly etc. Available at www. govindicators.
org.
4. Article 124 of the Indian Constitution.

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