Why in News: Reports have surfaced that Justice B.V. Nagarathna of the Supreme Court dissented against the Collegium’s recommendation to elevate Justice Vipul M. Pancholi, but her dissent was neither published nor acknowledged in the official resolution.
Introduction
- The judiciary in a constitutional democracy derives its legitimacy not merely from written laws but from a “culture of justification” — the principle that every exercise of public power must be explained and defended.
- In India, this principle has been invoked by judges to hold the executive accountable.
- However, the functioning of the Collegium system, particularly its secrecy in judicial appointments and concealment of dissent, poses questions about transparency, accountability, and the authority of the judiciary itself.
Background of the Collegium System
- Second Judges Case (1993): Established judicial primacy in appointments.
- Third Judges Case (1998): Entrenched the Collegium system, vesting power in the five senior-most judges of the Supreme Court.
- Post-2017: Resolutions started being published online, though mostly skeletal.
- 2018 Experiment: Brief attempt at fuller disclosure, later rolled back citing reputational concerns.
Issue in Focus: Justice Nagarathna’s Dissent
- Reports suggest that Justice B.V. Nagarathna dissented on the elevation of Justice Vipul M. Pancholi.
- The dissent note was not disclosed, and the Collegium resolution suggested unanimity.
- The Union Government notified the appointment within 48 hours, raising concerns about opacity.
- This incident illustrates how lack of transparency erodes the judiciary’s credibility and creates a democratic deficit.
Problems with Concealing Dissent
1. Opacity undermines legitimacy – Citizens are unaware of reasons behind crucial judicial appointments.
2. Democratic deficit – Courts demand accountability from other state organs but insulate themselves from scrutiny.
3. Reputational argument is weak – Other democracies like UK and South Africa manage disclosure without harming candidates.
4. Political pressure argument is flawed – Secrecy has not prevented executive interference through delays and selective approvals.
5. Institutional credibility at stake – Public trust erodes when courts apply double standards.
Comparative Perspective
- United Kingdom: Judicial Appointments Commission openly declares criteria, publishes assessment reports.
- South Africa: Judicial Service Commission holds public interviews of candidates.
- India: Collegium operates as a private conclave, with dissent and reasoning rarely disclosed.
Constitutional & Democratic Significance
- Judges play a counter-majoritarian role, safeguarding rights against executive or legislative excess.
- Judicial authority depends on public trust; without transparency, independence risks being perceived as arbitrariness.
- Article 124 of the Constitution empowers appointment by the President in consultation with judges — but practice has tilted towards judicial monopoly without adequate accountability.
Way Forward: Reforming the Collegium
1. Structured Transparency: Publish detailed reasons for appointments and rejections while balancing reputational fairness.
2. Institutionalizing Dissent: Dissenting opinions in appointments should be made public, strengthening credibility.
3. Legislative Backing: Consider a revised National Judicial Appointments Commission (NJAC) with safeguards for independence and transparency.
4. Public Participation: Broaden consultation beyond the judiciary to legal academia and bar councils, ensuring inclusivity.
5. Periodic Review: Establish oversight mechanisms to evaluate Collegium functioning.
Conclusion
The concealment of Justice Nagarathna’s dissent is not just about a single appointment; it reflects a larger systemic opacity. For the judiciary to preserve its independence and moral authority, it must apply to itself the same standards of accountability that it demands from others.
UPSC Relevance
- GS Paper II (Polity): Judiciary, transparency, accountability, judicial reforms.
Mains Practice Question:
Critically examine the impact of secrecy in the Collegium system on the legitimacy of the judiciary. How can India reconcile judicial independence with transparency in appointments?
