Opacity in the Collegium System

Why in the News?

1. Reports have surfaced that Justice B.V. Nagarathna dissented against the Collegium’s recommendation to elevate Justice Vipul M. Pancholi to the Supreme Court.
2. Despite this dissent, the official resolution uploaded on the Court’s website suggested unanimity, and the government notified the appointment within 48 hours.
3. This incident has reignited debates around opacity, accountability, and the democratic deficit in the Collegium system.

Key Highlights

1. Culture of Justification
   1. Concept introduced by Etienne Mureinik, stating that all exercises of public power must be explained and defended.
   2. Indian judges often invoke this principle to hold the executive accountable, but the Collegium itself avoids such transparency.
2. Justice Nagarathna’s Dissent
   1. She reportedly raised grave objections to Justice Pancholi’s elevation.
   2. Her note of dissent remains hidden, and it is unclear if even the Union government received it.
   3. The public only learned of this dissent through media leaks, not official communication.
3. Opaque Nature of the Collegium
   1. Collegium system evolved from Second Judges Case (1993) and Third Judges Case (1998).
   2. Comprises the five senior-most judges of the Supreme Court.
   3. Decisions are taken privately, with minimal disclosure and no detailed reasoning.
4. Failed Attempts at Transparency
   1. Since 2017, Collegium began publishing resolutions, but they were skeletal.
   2. In 2018, detailed reasons for selections/rejections were briefly uploaded but discontinued citing reputational harm to candidates.
   3. Justice Nagarathna’s dissent shows how even internal objections are now buried.
5. Weak Defence of Secrecy
   1. Collegium justifies opacity on two grounds: reputational harm and fear of political pressure.
   2. Comparative democracies (UK and South Africa) manage transparency through public debates, published criteria, and open interviews.
   3. In India, secrecy has not prevented political pressure; the executive still delays or stonewalls appointments.

Implications

1. Democratic Deficit
   1. Lack of transparency contradicts the democratic principle that public power must be justified.
   2. Undermines citizens’ trust in judicial institutions.
2. Judicial Legitimacy at Risk
   1. Judges decide constitutional questions affecting rights and liberties.
   2. If their own appointment process is opaque, it weakens their moral authority.
3. Executive–Judiciary Tensions
   1. Secrecy gives space for executive interference (delays, stonewalling).
   2. A more transparent system could actually strengthen judicial independence.
4. Erosion of Public Confidence
   1. Citizens are informed only about appointments, not reasons behind them.
   2. Creates suspicion and fuels perceptions of arbitrariness.
5. Need for Institutional Reform
   1. Without reforms, the Collegium risks delegitimising itself.
   2. A transparent, accountable process can secure judicial independence more firmly by rooting it in people’s trust.

Way Forward

1. Publish detailed reasons for selections, rejections, and dissents.
2. Adopt carefully structured disclosure, anonymised criteria, or redacted reasons.
3. Institutional safeguards (fixed timelines for govt. response, constitutional backing for transparency).
4. Build consensus among judges; highlight global best practices (UK, South Africa).
5. Consider Parliamentary debates on Judicial Appointments Commission (JAC) with proper safeguards.

Conclusion

The judiciary in India rightly demands accountability from other branches of the state, but the Collegium continues to shield itself from scrutiny. Justice Nagarathna’s dissent is not just about one elevation — it highlights a structural problem of opacity and accountability. For the judiciary to retain legitimacy and independence, it must embrace reform, adopt a culture of justification, and anchor its authority in the trust and confidence of the people it serves.