End the culture of secrecy in judicial appointments

 GS-II: Polity & Governance | Judiciary | Constitutional Bodies | Transparency & Accountability

Context

• Recent Observation: Justice Ujjal Bhuyan of the Supreme Court recently observed that greater openness in the collegium process would strengthen public confidence and help ensure that merit remains the governing principle.
• Core Debate: Reformers argue that insulation from political interference was never meant to become insulation from constitutional accountability.
• Unresolved Question: The issue of transparency in judicial appointments has remained unresolved for nearly three decades.

Evolution of the Collegium System

• Judicial Creation: The collegium is a judicial creation, not a constitutional one.
• First Judges Case (1981): Gave the executive primacy in judicial appointments.
• Second Judges Case (1993): Shifted primacy to the collectively formed opinion of the CJI and senior judges.
• Third Judges Case (1998): Expanded the mechanism into the present five-member collegium.
• Underlying Reasoning: The system was designed to protect judicial independence from political interference.
• Present Concern: Nearly three decades later, the process remains among the least transparent in any major constitutional democracy.

Concerns Regarding Transparency

• No Vacancy Notification: There is no established practice of publicly notifying vacancies in advance.
• No Eligibility Matrix: There is no publicly known matrix specifying the eligibility criteria for candidates.
• No Known Methodology: The methodology for assessing and comparing candidates remains unclear.
• Fali Nariman’s Criticism: Even Fali Nariman, credited as an architect of the collegium, later criticised it as “not receptive at all” to the Bar.
• Accountability Concern: If the system’s own architects concede that it answers to no one, reform cannot simply be characterised as interference.

Resolutions Without Reasons

• 2017 Reform: In October 2017, the collegium began publishing resolutions containing brief reasons for elevation, which was regarded as a step towards transparency.
• Gradual Retreat: This practice subsequently weakened.
• Since November 28, 2024: Collegium resolutions stopped naming which members participated in a decision and stopped disclosing reasoning.
• CJI B.R. Gavai’s Confirmation: In November 2025, then CJI B.R. Gavai confirmed that the collegium had resolved to stop publishing detailed reasons.
• Reason Given: Disclosure could potentially harm the career prospects of candidates.
• Concern: Such reasoning could equally justify withholding reasons from every rejected litigant.
• MediaOne Judgment (2023): The Court held that sealed-cover secrecy is “antithetical to a transparent and accountable system.”
• Institutional Question: If transparency governs the Court’s own proceedings, the question arises as to why a lesser standard should govern its own appointment process.

The “Uncle Judges” Concern

• Allegation: Opacity has fuelled allegations that relatives of sitting and retired judges — the so-called “Uncle Judges” — may have an easier passage to the Bench than first-generation lawyers.
• Former CJI R.M. Lodha: He remarked that nearly one in three High Court judges could be an “uncle”.
• 2018 Instance: The Union government flagged 11 of 33 names recommended by the Allahabad High Court collegium, noting that they were relatives of sitting or retired judges.
• 2025 Assessment: A broader assessment found that nearly 30% of Supreme Court judges — roughly 10 of 33 — had familial links to former judges.
• January 2025: The collegium considered whether judges’ kith and kin should be barred from consideration.
• Higher Scrutiny: While there was agreement in principle for higher scrutiny of relatives, a legal bar was not created.
• Underlying Problem: Without a publicly defined selection matrix, there is no objective way to distinguish a meritorious relative from a beneficiary of judicial lineage.

Constitutional Dimension

• Article 14: Guarantees equality before law and equal protection of laws.
• Article 16: Guarantees equality of opportunity in matters of public employment.
• Umadevi Judgment (2006): The Court held that appointments to public office cannot ordinarily be made through backdoor methods and should follow a transparent procedure open to eligible candidates.
• Constitutional Question: If constitutional equality demands openness in the recruitment of a clerk or engineer, the question arises whether the highest constitutional offices should remain exempt from comparable standards.
• Qualitative Nature of Judicial Selection: Judicial appointments cannot be reduced to a competitive examination because qualities such as independence and temperament resist quantification.
• But: Qualitative judgment does not require the total absence of procedure.

Right to Information and Judicial Accountability

• CPIO v. Subhash Chandra Agarwal (2019): The Court held that the office of the CJI falls within the Right to Information Act.
• Irony: The logic of transparency applicable to the CJI’s office has not been extended in the same manner to the process through which judges are appointed.

What Other Democracies Do

• United Kingdom: The Judicial Appointments Commission publicly advertises vacancies and conducts structured interviews.
• South Africa: The Judicial Service Commission publicly invites nominations and conducts televised interviews.
• Broader Principle: These systems demonstrate that transparency and judicial independence can coexist.
• Central Lesson: Independence can be strengthened, rather than weakened, when citizens understand how judges are chosen.

Democratic Legitimacy and Public Scrutiny

• Public Sphere: Political theorist Jürgen Habermas argued that democratic legitimacy ultimately rests on the public sphere, where institutions must justify themselves before informed citizens.
• Social Media: Judicial appointments and judicial conduct are now subjected to immediate scrutiny on social media.
• Changing Nature of Scrutiny: The scrutiny of a CJI’s remark comparing youngsters to “cockroaches” travelled from placards at Jantar Mantar to trending hashtags within hours.
• Contempt Jurisdiction: Contempt jurisdiction, developed for the newsroom and courtroom gallery, cannot simply be relied upon to control scrutiny of such scale and anonymity.
• Institutional Warning: This represents an alarm bell for a system that continues to keep its appointments behind closed doors and resists constructive criticism.

Reform, Not Retreat

• No Need to Dismantle Collegium: Reform does not necessarily require dismantling the collegium; it requires modernising the process.
• Anticipated Vacancies: Vacancies could be published in advance.
• Applications: Eligible advocates could be invited to apply.
• Objective Criteria: Clear and publicly known eligibility criteria could be established.
• Reasoned Recommendations: Recommendations could explain why one candidate was preferred over another.
• Protection of Confidential Inputs: Confidential inputs concerning integrity can remain protected.
• Process-Based Transparency: Transparency does not require disclosure of every file; it requires openness about the process, criteria and reasoning behind constitutional appointments.

Balancing Constitutional Values

• Not Judiciary vs Executive: The issue should not be reduced to a contest between the judiciary and the executive.
• Judicial Independence: The Constitution promises an independent judiciary.
• Constitutional Accountability: The Constitution equally promises equality, fairness and reasoned decision-making.
• Complementary Values: These values are complementary, not adversarial.
• Changing Debate: The debate of the 1990s was executive versus judiciary.
• Present Debate: The debate of this decade is opacity versus transparency.

Way Forward

• Transparent Framework: Establish a publicly understandable framework for judicial appointments.
• Objective Criteria: Make eligibility and assessment criteria clearer.
• Reasoned Decisions: Provide reasons for recommendations while protecting genuinely confidential information.
• Conflict-of-Interest Safeguards: Subject candidates with familial links to judges to appropriate higher scrutiny.
• Public Confidence: Ensure that transparency strengthens, rather than undermines, public confidence in judicial independence.
• Constructive Accountability: Allow institutional scrutiny without compromising judicial independence.

Conclusion

The debate over judicial appointments is no longer simply about executive versus judicial primacy. It is increasingly about whether judicial independence can coexist with constitutional accountability and transparency.

The collegium was created to protect judicial independence, but independence without adequate accountability can generate the very distrust that the system was designed to prevent.

Therefore, the objective should not be to dismantle the collegium but to modernise and make its functioning more transparent, while protecting legitimate confidentiality. The Constitution’s commitments to independence, equality, fairness and reasoned decision-making must operate together rather than at the expense of one another.

UPSC Mains Practice Question

Q. “Judicial independence cannot become a justification for institutional opacity.” Discuss the need for greater transparency and accountability in India’s collegium system while preserving judicial independence.