A year after four Supreme Court judges held a press conference at which they declared that democracy was in peril and the judiciary was under threat from the executive, not much has changed. This was borne out by recent comments made by Madan Lokur, one of the four judges who held the press conference and who retired on December 30. Lokur was asked about the change in a resolution taken by the Supreme Court collegium on December 12 that will now stop the elevation of two state chief justices to the Supreme Court. He replied that he was disappointed that the resolution of December 12 had not been made public, and that he had no knowledge of the information that caused the change in the resolution. Despite repeated appeals for more transparency, the collegium, it appears, still works in mysterious ways.
To recap, on December 12, the collegium – the body of five senior-most judges who make appointments – decided to fill two vacancies in the Supreme Court with the chief justices of Rajasthan and Delhi. While that decision was not officially made public, the names were leaked. Then on January 10, the collegium, whose composition had now changed, released a new resolution. It said that the decision of December 12 could not be firmed up as the “required consultation” could not be completed and the winter vacations had intervened.
After deliberations on January 5 and 6, and upon the receipt of “additional material”, the new collegium had decided to appoint two other judges to the Supreme Court. One of them would be superseding more than 30 other judges to the Supreme Court. Another, by some accounts, has been criticised by senior judges of the Supreme Court for his willingness to do the bidding of the executive. What additional information prompted the collegium to drop the two names decided on in December? Lokur, who was a member of the collegium until he retired, said he had no knowledge of it. What prompted the choice of the two fresh names? Once again, the public draws a blank.
The collegium has been under fire for its decisions before, notably in the case of KM Joseph’s appointment to the Supreme Court, which the Centre resisted. While the collegium stood by its decision to appoint Joseph, it deferred to the government on the matter of seniority. But the consideration of seniority does not seem to have weighed with it in the new appointments and it is not about to explain why either. In 2017, the clamour for transparency had prompted the collegium to put its decisions in the public domain, uploading resolutions on its website. But the rationale behind these decisions were not revealed. If the collegium is to establish its credibility as an institution working independently of the executive, without fear or favour, bolder reform is needed in the way it functions.
