The Indian judiciary’s Collegium system for appointing judges faces growing criticism for its lack of transparency. Recently, a rare dissent by Supreme Court Justice B.V. Nagarathna against the elevation of Justice Vipul M. Pancholi brought renewed focus on the opacity of judicial appointments. Despite the dissent being described as grave, the Collegium’s recommendation was presented as unanimous and the details remain undisclosed to the public. This incident marks deep issues in the culture of justification that underpins constitutional democracies.
Culture of Justification in Constitutional Democracies
A constitutional democracy requires that public power be exercised with clear explanations and accountability. This culture of justification ensures legitimacy through reasoned defence of decisions rather than authority by force. Courts in India often demand such accountability from the state. However, this culture appears absent in the judiciary’s internal process of selecting judges. The Collegium’s secrecy conflicts with democratic ideals of openness.
The Collegium System – Origins and Functioning
The Collegium system was established through Supreme Court rulings in the 1990s. It vests the power to appoint higher judiciary judges in the five senior-most Supreme Court judges. The Collegium deliberates in private and issues minimal public disclosures. Since 2017, it has published resolutions but these remain skeletal and lack detailed reasoning. Attempts to increase transparency have been brief and reversed due to concerns over reputational harm.
Impact of Secrecy and Lack of Accountability
Justice Nagarathna’s dissent exposes the cost of non-transparency. Even a senior judge’s serious reservations remain hidden from the public and possibly from the executive. The absence of explanations undermines public trust and weakens institutional legitimacy. The system’s opacity prevents informed debate on judicial appointments and shields the process from accountability.
Arguments for Confidentiality and Their Limitations
The Collegium defends secrecy on grounds of protecting candidate reputation and avoiding political pressure. Yet, these arguments falter under scrutiny. Other democracies manage transparency without compromising fairness. The UK’s Judicial Appointments Commission and South Africa’s Judicial Service Commission operate with public criteria and debates. India’s secrecy neither prevents political interference nor safeguards reputations effectively.
Judiciary’s Role in Democracy and Need for Reform
Judges wield power in interpreting laws and protecting fundamental rights. Their independence is vital for democracy’s health. However, the appointment process must itself be transparent and accountable. Without reform, the Collegium risks eroding public confidence and its own authority. Embracing openness would strengthen judicial independence by building trust with citizens.
Comparative Perspectives on Judicial Appointment Transparency
Globally, judicial appointment systems vary but share a commitment to public justification. In Britain, candidates are assessed openly and reports are published. South Africa holds public interviews and debates on judicial suitability. These practices enhance legitimacy by allowing citizens to understand and scrutinise the process. India’s reluctance to adopt similar transparency isolates its judiciary from democratic norms.
Challenges and Prospects for Change
Efforts to reform the Collegium have faced resistance and setbacks. Balancing transparency with confidentiality requires careful design. Disclosure protocols can protect personal reputations while providing reasons for appointments or rejections. Political interference must be curtailed through clear procedural safeguards. The judiciary’s willingness to reform will determine the future trust in India’s highest courts.
Questions for UPSC:
- Critically discuss the importance of transparency and accountability in the appointment of judges in a constitutional democracy with examples from India and other countries.
- Examine the role of an independent judiciary in protecting fundamental rights and maintaining the balance of power in a democracy. How does the appointment process affect this role?
- Discuss in the light of judicial appointments, the challenges of maintaining judicial independence while ensuring democratic legitimacy in India and globally.
- Analyse the impact of secrecy in public institutions on democratic governance. Taking examples from the judiciary and other branches of government, discuss measures to enhance transparency without compromising institutional integrity.
