And here’s one of the problems with the opaque collegium and judiciary, which rarely if ever officially confirms anything to journalists, leaving reporting on the bench to often be sourced on hints and whispers.

An Indian Express report today directly contradicted a Times of India report from 15 March ago, which had stated that the collegium had finalised its memorandum of procedure (MOP) of selecting future judges, in particular because it had conceded the power to effectively veto candidates based on “national security” concerns to the executive.

However, Maneesh Chhibber reported in The Indian Express today that the collegium has rejected the “national security” exception:

Sources told The Indian Express that in its final meeting on March 10, the five-judge collegium, headed by Chief Justice of India J S Khehar, unanimously rejected the recommendation of the Modi government that the government should have the power to reject any name for appointment as a judge of the high court for reasons of “national security”

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“If there is sufficient material that the government provides to the collegium to substantiate its view that the appointment of a candidate could compromise national security, I don’t think any collegium will ever dismiss such sensitive feedback. But the government can’t be given a virtual veto to reject any name by merely invoking national security. This would lead to politicisation of the entire appointment process, something that the framers of the Constitution didn’t want,” said a member of the collegium.

(Today’s IE report is worth reading in full, since it contains a lot more background about the disagreements).

On 15 March, 5 days after that purported final collegium meeting, the Times of India report had stated that Chief Justice of India (CJI) JS Khehar had sent a letter to the government on 13 March sharing the collegium’s views:

The source said the collegium agreed with the Centre on the national security clause on the condition that specific reasons for application of the clause were recorded. Other sources confirmed that the issue, one of the sticking points, was resolved “in the best possible way”.

So, what gives?

For one, we get to say a little smugly that our commentary published on 15 March, was rather skeptical of the need and wisdom for the judges having reportedly agreed to a “national security” exception (especially after the long fight the Supreme Court had put up against the government to avoid it having vague and undefined veto powers).

In light of the collegium’s apparent rejection of that clause, it appears that our skepticism was well-placed, but it still makes you wonder how these two contrary reports happened.

Since the collegium and the government both mostly keep up a shroud of secrecy over the issue, allow us to indulge in wild speculation over the many similarly bizarre interpretations available here:

1. Either the TOI or the IE (or both) reports are wrong, unreliable or misquoting sources. That seems unlikely, considering the specificity (albeit anonymity) of the quotes (with the IE even quoting an unnamed collegium member), and the fact that both articles are bylined by seasoned and respected Supreme Court editors at both papers.
2. The collegium u-turned or disagreed (or still disagrees) internally about its position vis-a-vis national security, which also seems a little unlikely.
3. There was never any agreement on the “national security” exception in the first place, but: (i) a source that was sympathetic to the government made the statement in order to put pressure on the collegium, or (ii) a source close to the collegium made the statement in order to put pressure on the government to accept a much-neutered “national security” exception.
4. Although not apparent from the reports, the government rejected the Supreme Court’s proposal of 13 March and collegium members are now saving face by saying they had actually rejected the government.

What’d be wrong with a little more transparency though?

But to some extent, all that is academic anyway: what’s clear is that the judicial appointments saga is not over after all yet.

And what’s also clear, yet again, is that we really need some more transparency in this whole process.

What’s wrong with the Supreme Court publishing proposals and negotiations with the government on its own website?

And why can’t the government respond publicly to the judges about this issue, which is of fundamentally democratic importance to everyone?

What’s with this cloak and daggers approach of unnamed sources negotiating through the media?

Photo by Paul Downey