Supreme Court led by outgoing Chief Justice Sanjiv Khanna released three sets of documents to shore up public confidence in its internal processes. These include:  PDF documents detailing the procedure for the appointment of Supreme Court and High Court judges; 

On 5 May, the Supreme Court led by outgoing Chief Justice Sanjiv Khanna released three sets of documents to shore up public confidence in its internal processes. These include:

1. 1.  PDF documents detailing the procedure for the appointment of Supreme Court and High Court judges;
   2.  A tabular list containing details of proposals approved by the Collegium for appointment as High Court judges during the period 9 November 2022 to 5 May 2025; and
   3.  Statements containing asset declarations for 21 out of 33 sitting judges of the Supreme Court

On 1 April, a meeting of the Full Court had decided that asset declarations would be placed in the public domain. A press release issued by the Court on 5 May promised that the statements of assets of the remaining judges will be “uploaded as and when they are received.”

Do the documents on appointment go beyond the MoPs?

It’s not as though the appointment procedure had been completely shrouded in opacity. Memorandums of Procedure (MoP) for both Supreme Court and High Court appointments were first drawn up in the late 1990s. But there has been a deadlock over the revision of these documents.

The revision was first ordered by a Constitution Bench of the Supreme Court in the supplementary Order that followed the striking down of the National Judicial Appointments Commission Act. There, it had noted that the MoP has to be tweaked to ensure transparency and evolve eligibility criteria. There was also a proposal to establish a Secretariat to deal with complaints against recommended judges and facilitate interaction between them and the Collegium. The government had insisted on taking up the task of revising the MoP, in consonance with past practice. However, there was disagreement between the government and the Collegium on the former’s proposals.

A wider tussle has continued to play out in the shadow of this stalemate. In December 2022, then Law Minister Kiren Rijuju made remarks about the lack of transparency in the Collegium system in the Lok Sabha. Judges have often referred to the executive’s delay in notifying appointments and transfers.

A report card for judges

In this background, do the new transparency initiatives of the Court reveal anything that was previously unknown? One aspect that does appear to be in the public domain for the first time is the Performance Appraisal Template (PAT) for the High Court judges.

The PAT contains a year-wise catalogue of judgement pronouncements, a subject-wise break-up of judgements and a separate category for breaking up judgements disposition-wise (number of applications disposed of, number of times the judge has held in favour of the State, number of times they remand a case, etc.).

The PAT also contains entries for the number of times the judge has ruled in favour of the Income Tax Department, on the one hand, and assesses, on the other.

Missing the point on ‘confidentiality’? 

Other components of the documents are less novel. For instance, the specimen letters from the CJI to the Law Minister, conveying the recommendation of the Collegium, are almost identical to the text of the Collegium resolutions that have been uploaded to the SC’s website since October 2017.

It defies understanding why this kind of letter is marked as “confidential” when it only refers to the name of the judge and is unlikely to contain any qualitative information about the reasoning of the Collegium. Similarly, the specimen letter of opinion from a consultee judge of the Chief Justice of India is also marked as “confidential”.

A disclaimer attached to the specimens clarifies that they are indicative and the letters’ contents may vary depending on individual recommendations. This goes to show that the reasons on which judge recommendations turn, still remain opaque to the public.

The curious case of reiterated recommendations 

One of the sticky points around the revised MoP is whether the reiteration of a recommendation by the Collegium is binding on the government. While it was established in the Second Judges Case (1993) that the government is bound to accept a reiterated recommendation, the convention has not been codified in the MoP.

The new document for the appointment of High Court judges, however, expressly notes that the government is bound by a reiterated recommendation (under the sub-heading ‘Role of the Union Government’). Interestingly, there is no similar sentence in the document on the procedure for the appointment of Supreme Court judges.

It may well be that this omission is inadvertent, but there doesn’t seem to be a reported instance of the Collegium reiterating a recommendation when the government has used its pocket veto against the initial suggestion.

In 2014, Senior Advocate Gopal Subramanian was recommended by the Collegium. He withdrew his candidature in a nine-page letter to the CJI, a campaign to attack his credibility. The letter came in the wake of several reports of the fresh-in-power BJP government’s reluctance to see him in the Supreme Court. The Collegium quietly rescinded his recommendation.

In 2023, the Collegium also rescinded its recommendation to transfer Justice S. Muralidhar from the Orissa High Court to the Madras High Court after the Government sat on the suggestion for several months.

Caste diversity and ‘Uncle Judges’

The list containing details of proposals for High Court elevation during the tenures of Chief Justices Chandrachud and Khanna reveals interesting information about the diversity composition in High Courts.

While Collegium resolutions for individual judges sometimes mention whether the judge belongs to the Scheduled Caste, Scheduled Tribe or Other Backward Class communities, this is the first time such information has been officially presented in a consolidated manner, for every judge recommended by the Collegium. The disclosed data has facilitated analysis on court composition, such as this article, which suggests that only 3.6 percent of the Collegium’s recommendees for High Courts were from Scheduled Castes.

Likewise, the disclosure of the relation of Collegium nominees to current or past appointees is a fresh feature. The inclusion of this information is likely meant to address the oft-repeated criticism that the judiciary suffers from ‘Uncle Judges Syndrome’.

Strangely, the data released doesn’t disclose similar information on caste and relations for Supreme Court judges. While it is well known which judges in the top court are from Scheduled Caste or Scheduled Tribe communities, information about which judges may belong to the Other Backward Classes is less forthcoming and has not been issued through official sources. The current transparency initiative seems like a missed opportunity to present this data.

 A statement about statements

The commitment of judges of the higher judiciary to publicly declare their assets goes way back to 1999, to a conference of High Court Chief Justices in Delhi hosted by then CJI A.S. Anand. But it was only in 2009 that information about the assets of some Supreme Court judges was uploaded to its website. Through all this time, there has been no legally binding directive for judges to release this information—̉it has always been a voluntary endeavour.

The latest push for asset declaration came in the wake of the cash-in-residence controversy around Justice Yashwant Varma, formerly of the Delhi High Court. This was the background of the recent assent declarations.

While the outgoing CJI Sanjiv Khanna is to be commended for persuading his colleagues to voluntarily agree to declare their assets and investments and those of their close relatives, questions continue to be raised about whether this is an effective measure to stamp out corruption. As the academic Shubhankar Dam argued in a paper published in 2022, judicial corruption in India has always been invisible, declaration of assets notwithstanding.