Transparency in Judicial Administration

Accountability is generally cultivated in many judicial systems through the processes of selection and removal for which the Constitution makes elaborate provisions. But if appointment is through processes which are not transparent and are controlled by an individual or group of individuals howsoever high they be, accountability gets eroded. Transparency in administration is a necessary element of accountability and it applies to judicial administration as well. 

Unlike vacancies in lower courts, vacancies in Superior Court are not advertised. Appointments are by invitation only. That invitation is preceded by confidential consultations between the Chief Justice and one or two other judges of the so-called collegium. In fact, in the past, even the information available about the candidate was so scanty that it led to some cases of even ineligible persons being recommended for judgeship! Though the Constitution allows a wider pool of person’s eligible even from outside the judiciary and the legal profession, there has never been an occasion in sixty years of judicial history to look beyond the limited pool of lawyers and judges. 

There are allegations that the Collegium judges accommodate each other’s candidates and impose them on the system even if there are more competent persons available for the job. What constitutes merit for judicial selection is not clear. Seniority is overlooked and justified in terms of merit, about which there is neither agreement nor transparency. The consultation process with the Executive has become a formality of no consequence. The rot in the higher judiciary begins from this secretive process of judicial appointments. 

It is gratifying to note that the present Chief Justice of India has asked Chief Justices of High Courts to seek more detailed information about candidates whom they recommend for judgeships for which a proforma was also evolved and circulated. Whether this will help select better candidates or help eliminate undeserving persons, one cannot speculate because the public would not know how the final recommendations are made. On the other hand, if confidentiality is totally abandoned and the government is involved in the selection procedure, it is likely to politicize matters and jeopardize the independence of judiciary. 

The solution adopted by most countries is the setting up of an independent Commission for which we understand that the Government of India is bringing forward a Bill. Once constituted, such a Commission may also have powers to investigate complaints against judges and recommend appropriate action against erring judges. Why such a good measure approved long ago is not being brought forward by Government is another mystery difficult to decipher. 

Again, transparency is wanting in the matter of transfer of judges from one High Court to another. While the judiciary condemns arbitrariness on the part of every branch of government, and rightly so, it refuses to entertain challenges to its own action. It was declared in the Second Judges Case (1993) that no judicial review can be entertained by any person aggrieved by the Chief Justices’ action in relation to transfer. 

The management of the administrative side of superior courts has also been a subject of several complaints. With greater transparency in judicial administration many of these complaints could have been avoided. Perhaps there is a need for a judicial ombudsman for judiciary itself. The slow-moving computerization process of the court system might bring in the desired transparency in court administration which hopefully will help in enhancing public confidence in the judicial system. Meanwhile judges should introspect how they manage the administration of the system and whether greater transparency will do some good to increase public confidence in the system.