End the culture of secrecy in judicial appointments
Subjet: GS II- Polity & Governance.
Context
The debate over transparency in India’s higher judiciary has resurfaced following recent observations by Justice Ujjal Bhuyan, who noted that greater openness in the collegium process can bolster public confidence and ensure that merit remains the definitive touchstone for selection. The core challenge facing Indian constitutional governance is reconciling the imperative of judicial independence with institutional transparency and democratic accountability.
The Evolution and Nature of the Collegium System
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A Judicial Creation: Unlike explicit textual provisions in the Constitution, the collegium system is entirely a judicial innovation born through landmark rulings:
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First Judges Case (1981): Granted primacy to the Executive in judicial appointments.
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Second Judges Case (1993): Reversed this position, establishing the primacy of the collective opinion of the Chief Justice of India (CJI) and senior-most judges.
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Third Judges Case (1998): Expanded the mechanism into the present five-member Supreme Court collegium.
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Original Intent: The collegium was designed to insulate the judiciary from political interference and executive overreach, safeguarding the independence of the bench.
The Drift Toward Opacity: Recent Developments
Critics argue that protection from political influence has gradually mutated into insulation from public scrutiny and constitutional accountability.
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The Retreat from Transparency: While the collegium briefly published brief reasons for its recommendations starting in October 2017, the practice subsequently withered. By November 2024, resolutions stopped identifying participating members and providing reasons altogether.
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The Official Rationale: In November 2025, former CJI B.R. Gavai noted that the collegium had decided to discontinue detailed reasoning to protect candidates’ professional careers from the fallout of non-selection. Critics, however, argue that this creates an excessively broad shield for non-transparent decision-making.
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The Sealed-Cover Contrast: This opacity stands in sharp contrast to the Supreme Court’s own ruling in the MediaOne judgment (2023), where the apex court severely criticized “sealed-cover secrecy” as antithetical to transparency and rule-of-law principles.
The “Uncle Judges” Phenomenon and Equity Concerns
One of the most persistent criticisms of a closed appointment process is the alleged advantage enjoyed by relatives of sitting or retired judges:
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Empirical Realities: Past observations by senior jurists (including former CJI R.M. Lodha) and government scrutiny (such as the 2018 assessment flagging familial links among numerous recommendations) indicate that a significant proportion of higher judiciary appointees possess judicial lineages.
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The Constitutional Tension: Without publicly defined, objective selection criteria, it becomes nearly impossible to distinguish genuine merit from preferential access, raising questions under Articles 14 and 16 (equality before law and equal opportunity in public employment) and undermining the principle of open public appointments emphasized in State of Karnataka v. Umadevi (2006).
Comparative Global Models: Transparency Coexisting with Independence
Judicial appointments do not have to choose between secrecy and political interference. Global democracies demonstrate that structural openness is entirely feasible:
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United Kingdom: The Judicial Appointments Commission publicly advertises vacancies, invites applications, and follows a structured, objective selection methodology including interviews.
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South Africa: The Judicial Service Commission publicly invites nominations and conducts televised interviews, ensuring rigorous public visibility.
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The Indian Precedent: The Supreme Court itself held in CPIO v. Subhash Chandra Agarwal (2019) that the office of the CJI falls within the purview of the RTI Act, reinforcing that institutional accountability and confidentiality can coexist.
Conclusion and Way Forward
Qualitative attributes like judicial temperament, legal acumen, and absolute integrity cannot be reduced to a simple written examination. However, qualitative judgment does not require procedural opacity.
As Jürgen Habermas’s public-sphere theory suggests, democratic legitimacy depends on institutions justifying their actions before informed citizens. Reforming the collegium does not mean dismantling judicial independence or scrapping the institution; rather, it requires meaningful procedural upgrades:
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Advance Publication: Publicly notifying upcoming vacancies across High Courts and the Supreme Court.
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Objective Criteria: Establishing clearly defined, transparent benchmarks for evaluation.
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Reasoned Recommendations: Publishing detailed, transparent grounds for selections to assure the public that merit alone governs the apex of India’s justice delivery system.
