Unexplained Collegium picks risk bad judges, says Justice Bhuyan

Supreme Court Judge Justice Ujjal Bhuyan on Saturday said the Collegium's failure to provide reasons for its recommendations in judicial appointments creates a loophole that could allow individuals with a history of unconstitutional or derogatory remarks to enter the judiciary. He was delivering the keynote address at the launch of Vidhi Centre for Legal Policy's report, 'The Judicial Transparency Index: Assessing Disclosure of Information by the Supreme Court and the High Courts'.

Citing an example, Justice Bhuyan referred to a former Allahabad High Court Judge who is reported to have described a minority community as 'ants' in a speech made while serving on the Bench. He said such incidents underscore the need for a more transparent and accountable selection process.

"Deliberations over the elevation and transfer of judges remain confidential; reasons for rejecting or deferring a recommendation are rarely disclosed in full; and the criteria applied are not codified in any publicly accessible instrument comparable to the Memorandum of Procedure's own limited disclosure. I have seen that the last three statements of the Supreme Court Collegium do not contain any reason at all for recommending elevation as opposed to the earlier statements where each of the recommendations was supported by some reason," Justice Bhuyan said.

He noted that by not giving reasons, the Collegium is also keeping the public in the dark about the achievements of deserving candidates. "The return to opacity has been a relatively recent phenomenon," he added.

The Supreme Court Judge then turned to the issue of livestreaming court proceedings, which he described as the "most visible transparency development of the last decade". He referred to a July 24 order passed by a Bench headed by Chief Justice of India Surya Kant, stating that it draws a clear line between transparency through livestreaming and preventing misuse of that process.

"The court's concern is that decontextualised fragments of oral exchanges, observations made by judges in the course of argument, not findings, are being circulated with sensational captions, causing reputational harm to judges, advocates, and litigants alike, and distorting public understanding of what had actually happened in court. The order does not retreat from live streaming; it draws a distinction between transparency of the process and the licence to manufacture a misleading narrative from that process," he explained.

Addressing fears that abuse of livestreamed content might lead to the facility being withdrawn, Justice Bhuyan underscored the principle of open justice as quintessential for retaining public faith in the judiciary. "Open courts effectively foster public confidence. The court of justice is a public forum. Open courts make it possible for the public to develop reasonable perceptions about the judiciary… Allowing the litigants and members of the public to view courtroom proceedings, ensures that judges apply the law in a fair and impartial manner," he said.

He also referenced the 2018 Swapnil Tripathi judgment, which held that livestreaming expanded the courtroom beyond its physical walls and epitomised transparency, good governance and accountability. Quoting the Supreme Court's 2020 judgment in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, he said: "Judicial independence is not secured by the secrecy of cloistered halls. It cannot be said that increase in transparency would threaten judicial independence."

Justice Bhuyan concluded by saying that public access to justice and transparency is the "very soul of justice" and "the keenest spur to exertion and the surest of all guards against improbity".