Sanity in Transparency

What Pratap Bhanu Mehta thinks on the issue of reckless demand for transparency in selection process/appointments.

“Transparency is an attractive idea, but its contours need to be clearly defined. A bit of historical context is in order. One of the reasons we got a more mediocre judiciary, or in some aspects, civil service, is that we had this illusion that no one needs to exercise complicated judgement. The only way to appear to be fair and transparent is to come up with objective criteria. Seniority became the default criteria, albeit occasionally manipulated. One danger with certain demands for transparency is that it cannot happen without a counterproductive reductionism. The use of transparently accessible numerical criteria in academic selections is a good example of perverse incentives.

There is a clamour for selection committees to explain their appointments publicly. This is nonsense. There are good reasons not to malign reputations or cast doubt on the competence of rejected candidates. If they are serving judges, it might undermine their authority. It is possible to select one without suggesting others were unworthy; but public articulations make this difficult. Do you really want unelected judges or senior counsel to go with a sign on their head: “unworthy of the Supreme Court”? All institutions run on something called presumptive worthiness. Undermining this has long-term consequences for the institution.

Selection is a matter of judgement. It is not just a matter of objective qualifications but involves subtle points of judgement like institutional fit, temperament and so forth. These are all relevant. But the more selection committees have to explain themselves, the less likely it is that the relevant criteria will be taken into account, because these criteria are context specific. In India, there is also the misconception that the US process is transparent. It is transparent in the sense that their political system transparently accepts the political nature of judicial appointments. Public hearings are not about selecting the best candidate. Few would accuse the Supreme Court of the United States of achieving that distinction. I doubt we are ready to accept a politicised judiciary in that sense.”

Source – Indian Express

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