Collegium System Should Not Be Derailed, Says Supreme Court

The Supreme Court said on Friday the existing collegium system should not be derailed on the basis of statements of "some busybody", asserting the top court is one of the most transparent institutions.

Amid divisions within the judiciary and its festering dispute with the government over the system under which existing judges appoint judges to constitutional courts, it said it does not want to comment on what a few former apex court judges, who were once members of the Supreme Court collegium, are now saying about the mechanism.

A bench of Justices MR Shah and CT Ravikumar said, "Nowadays, it has become a fashion to comment upon earlier decisions (of the collegium) made when they (former judges) were part of the collegium. We don't want to say anything on their comments".

The top court was hearing a petition by RTI activist Anjali Bhardwaj against the Delhi High Court order dismissing her plea seeking the agenda of the Supreme Court collegium's meeting held on Dec. 12, 2018 when certain decisions were purportedly taken on the elevation of some judges to the apex court.

Advocate Prashant Bhushan, appearing for Bhardwaj, said former apex court judge Justice MB Lokur, who was part of the collegium in 2018, had said in public domain that the decisions taken at a collegium meeting on Dec. 12 that year should have been uploaded on the top court’s website.

On Dec. 12, 2018, the collegium headed by then Chief Justice Ranjan Gogoi and comprising Justices Lokur, AK Sikri, SA Bobde and NV Ramana (all retired) had purportedly taken certain decisions with regard to appointment of judges in the top court and proposals for transfer of chief justices and judges of high courts but those resolutions were not uploaded on the Supreme Court website.

Later, on Jan. 10, 2019, the collegium, whose combination got changed due to the retirement of Justice Lokur, took another decision to recommend to the centre the elevation of Justices Dinesh Maheshwari and Sanjiv Khanna and said the recommendations dated Dec. 12, 2018 proposed earlier could not be finalised as it was decided to have a fresh look at them.

At the Jan. 10 meeting, the collegium decided to reconsider the earlier proposals in the light of additional material that became available.

Bhushan, who narrated the sequence of the purported events, told the bench that the petitioner is only seeking three specific documents related to the collegium meeting of Dec. 12, 2018.

"The question here is whether the decision of the collegium comes under the purview of the Right to Information Act. The subsequent meeting dated January 10, 2019 mentions about the decision taken on December 12, 2018," he said.

At this point, the bench said the decisions taken in the 2018 meeting were "oral" and not written decisions.

"Where it has been said that it was not a written decision but an oral decision?" asked Bhushan.

He recalled, in another case regarding filling of the vacancies of chief information commissioners and information commissioners filed by petitioner Bhardwaj, this court has passed directions about the transparency required in the appointment process.

"Are the people of the country not entitled to know what decisions have been taken in a particular collegium meeting?" he asked, adding let the Supreme Court Public Information Officer say the Dec. 12, 2018 decision was not a written decision.

"Is the Supreme Court immune from RTI Act?" he asked, and asserted the Right to Information Act is a fundamental right.

The top court said it will pass orders on the plea and reserved its verdict.

On July 27, the Delhi High Court had dismissed Bhardwaj's appeal challenging a single-judge order rejecting a plea seeking the agenda of the Supreme Court collegium's meeting held on Dec. 12, 2018, when certain decisions were purportedly taken on the elevation of judges to the apex court.

It had said the order of the single judge, as well as the orders of the authorities refusing to direct disclosure, did not require any interference.

Bhardwaj had challenged before the single judge the CIC's Dec. 16, 2021 order by which her second appeal was dismissed, and sought a direction to the authorities to disclose the available information sought under the Feb. 26, 2019 RTI application.

Her petition said on Jan. 23, 2019, Justice Madan B Lokur, who was a part of the collegium meeting and retired on Dec. 30, 2018, had in an interview expressed his disappointment that the Dec. 12, 2018 collegium resolution was not uploaded on the Supreme Court website.

According to former Chief Justice of India Ranjan Gogoi's autobiography 'Justice for the Judge', the names of Justice Pradeep Nandrajog, the then Chief Justice of the Rajasthan High Court, and Justice Rajendra Menon, the then Chief Justice of the Delhi High Court, had been cleared for elevation to the Supreme Court at the collegium's Dec. 12, 2018 meeting.

The matter allegedly got leaked, after which the issue was kept in abeyance by Justice Gogoi till January 2019 because of winter break which started on Dec. 15, 2018, the book said.

In January 2019, a new collegium was constituted after the retirement of Justice Lokur.

The new collegium, in its resolution of Jan. 10, 2019, did not clear the names of Justice Nandrajog and Justice Menon for elevation to the Supreme Court, according to the book.

The petition did not mention the names of any judges whose names were allegedly cleared.

Initially, Bhardwaj had filed an RTI application before the Supreme Court seeking copies of the agenda, decisions taken and resolutions passed in the Dec. 12, 2018 meeting.

However, the Supreme Court's Central Public Information Officer refused to provide the information and, while disposing of the appeal against the denial by the CPIO, the First Appellate Authority held that in view of the subsequent collegium resolution of Jan. 10, 2019, it was clear that though certain decisions were taken in the collegium meeting of Dec. 12, 2018, the required consultations could not be completed and no resolution was formally passed.

In the second appeal, the court was informed, the CIC also relied upon the Jan. 10, 2019 resolution and held that the agenda of the collegium's Dec. 12, 2018 meeting was clear from the subsequent resolution of January 10 and the copy of the decision and the resolution of December 2018 did not exist on record in terms of Section 2 (f) of the RTI Act and therefore, could not be supplied to the petitioner.