Courts need to be transparent in functioning

The courts need to pull down the wall of obscurity surrounding its administrative functioning for building up a more credible system from its debris. Sunlight is the best disinfectant and a wall that keeps it away can only breed diversity of conjectures, suppositions and, at times, fallacious impressions that can harm the system more than keeping it away from darkness would have done.

The fact that obscurity breeds greater obscurity and sunlight can shield things from generation of direct heat is an actuality that one needs to comprehend. People tend to turn economical with the truth when reality is in the shadows and half-truth attains the proportions of a whole lie.

The courts must remember its actions have to crystal clear and in the public domain, as opacity and secrecy has no place in a democratic setup. It needs to be kept in mind that familiarity of the public with the facts of a matter will seldom breed contempt.

A thing in open is a matter of great satisfaction. Confidentiality will almost always generate suspicion even if it turns out to be ill-founded and baseless after eventually coming out in the open.

The Supreme Court collegium’s decision to transfer Delhi High Court Judge, Justice S Muralidhar, to the Punjab and Haryana High Court has met with strong opposition from the Delhi High Court Bar Association. It even went up to the extent of asking its lawyers to refrain from work.

While the Bar’s concerns can be placed in the realm of genuineness and its decision to stay away from work can easily be interpreted as a move to stand up for a member of the Bench, it cannot be said whether the reaction and the action was essential in the absence of clarity in the matter. Already, there are indications that the objections to the transfer may have been misplaced as Justice Muralidhar may eventually go on to become the Chief Justice of the Punjab and Haryana High Court.

The fact that the obscurity shrouding the reasons for Justice Muralidhar’s transfer gave rise to a volley of questions cannot be placed in the domain of doubt. Greater transparency in the matter would not have done harm to the institution.

The collegium system has withstood the test of time and judicial scrutiny. It is now for the courts to project it as preeminent mechanism for taking administrative decisions, including appointment and transfers of Judges.

Judges, like Caesar’s wife, should be above suspicion. But when their silence speaks louder than their words and creates an aura of suspicion regarding the institution’s image or the mechanism’s conduct, quietness needs to be shunned. Not only must a right be done; it must also be seen to be done.

The Supreme Court, in an exceptional move, came out with a statement that said certain reports relating to recommendations recently made by the Collegium regarding the transfer of Chief Justices/Judges of the High Courts have appeared in the media.

It said each of the recommendations for transfer was made for cogent reasons after complying with the required procedure in the interest of better administration of justice. It would not be in the interest of the institution to disclose the reasons for transfer. But the Collegium, if found necessary, would have no hesitation in disclosing the same.

The judiciary almost always works from behind an iron curtain and what takes place in full court and collegium meetings becomes apparent only after the decisions are made public, or find their way into the public domain through media leaks. But it needs to remember that transparency is no more in the realm of desirability. It is essential to come out with precise and constructive information without breaching the procedural values and damaging the image of the justice delivery mechanism.

Every court gives reasons for decisions taken on the judicial side during the hearing of cases. The courts, under obligation to give reasons, do state in their judgments and orders why, and on what facts, circumstances and laws, are the decisions based. It comes as an assurance to the litigant that the court’s decision is not arbitrarily and there are convincing reasons for the orders. The principle considered sacrosanct on the judicial side loses its meaning when it comes to administrative decisions.

The governments have opened themselves to public scrutiny through the Right to Information Act. While the Collegium recommendations and reasons for the same cannot, and should not, be brought under the purview of the RTI Act, the judiciary needs to throw open the windows for the public to peep in and see how it functions.

Confidentiality in its functioning on the administrative side is a fact the judiciary makes no secret about. But it should not be seen as putting things out of sight, when it has nothing to hide. A former Chief Justice of India did not defend opacity, but at the same time suggested that too much of transparency could destroy the judiciary.

The courts should, in larger public and their own interest, clear the cloudiness by keeping in mind that transparency will not chip away at judicial independence. Reason is the soul of all laws and decisions and it should not be kept under wraps, lest it gives the impression of being unreasonable.

BENCH MARK
Law, and the order
Govts should be cautious towards litigation only if needed
by Saurabh Malik

The Punjab and Haryana High Court has made it clear that the governments, both at the Centre and in States, are required to be cautious in their approach towards litigation and contest cases only if necessary. The High Court took note of the fact that the State was the biggest litigant. The Bench asserted it would not be off the cuff to remark that greater responsibility for decongestion of cases in the courts was on the shoulders of the governments, be it the Central or the States. The Bench added enormous time of the courts and offices, besides money spent on frivolous litigation, stirred judicial conscience. “A million dollar question comes to the mind of the court why should the government system be not responsible so as to prevent litigation where it can rationally and logically be prevented, as State is the biggest litigant in the country,” Justice Fateh Deep Singh added.