OPINION | Reforming the collegium system will preserve judicial independence, not undermine it

A dissent that brings back troubling questions

Recently, when Supreme Court judge Justice B.V. Nagarathna’s dissent against Justice V.M. Pancholi’s elevation came to light, it again brought renewed attention to the system of judicial appointments. While the Collegium continues to function, the episode underscores persistent questions about its transparency, inclusivity, and long-term credibility.

While arguments can be advanced in defence of the Collegium’s decision to elevate Justice Pancholi, the larger questions about the functioning of the Collegium and the pressing need for reforms cannot be brushed aside—concerns that resurface every time such dissent comes to light.

This episode, therefore, is less about the merits or demerits of an individual appointment and more about the structural questions it raises and revives. It is a reminder that the opacity of the Collegium system leaves space for speculation, raising doubts that could be addressed only through meaningful reform.

Opacity triggers suspicion

The collegium system has been criticised on the grounds of being opaque in its functioning, as it is completely a closed-door affair, with no established selection procedure or qualification requirements being in place. Collegium has absolute freedom to decide upon the names to be appointed as judges.

In 2011, former Supreme Court judge Justice Ruma Pal, while speaking at the 5th VM Tarkunde Memorial Lecture, made a very pertinent point. She quoted an observation from the judgment in the 'First Judges Case', to highlight the problem with the Collegium system.

She said: “The mystique of this process (of appointments) is kept secret and confidential between just a few individuals, not more than two or four as the case may be, and the possibility cannot, therefore, be ruled out that howsoever highly placed maybe these individuals, the process may on occasions result in making of wrong appointments and transfers and may also at times, though fortunately very rare, lend itself to nepotism, political as well as personal and even trade-off”.

She added, “The same criticism may be made with equal justification of the present procedure for appointments and transfer of judges. As I have said elsewhere, 'the process by which a judge is appointed to a superior court is one of the best kept secrets in this country.”

Former Supreme Court judge Justice Jasti Chelameswar, who was the sole dissenting judge in the NJAC case, in his dissenting note wrote, "Transparency is a vital factor in constitutional governance. Transparency is an aspect of rationality. The need for transparency is more in the case of the appointment process. Proceedings of the Collegium were absolutely opaque and inaccessible both to the public and history, barring occasional leaks”.

There have been several instances where recommendations made by the Collegium narrowly missed final approval—decisions that, in retrospect, proved justified. At the same time, there are instances when highly deserving candidates were overlooked for reasons known only to the Collegium, casting doubt on the impartiality of its functioning.

Hits and misses

The 2009 episode of Justice P.D. Dinakaran’s proposed elevation to the apex court, later stalled amid serious allegations, starkly exposed the cracks in the Collegium system. Whether or not such concerns were known at the time, the very fact that his name reached the stage of recommendation raised troubling questions about the robustness of the appointment process.

When Justice S. Muralidhar retired in August 2023 as Chief Justice of the Orissa High Court, former judge Madan B. Lokur, along with jurists like Fali S. Nariman and Sriram Panchu, sharply questioned why one of the country’s finest judges of recent times was never elevated to the Supreme Court—an omission they saw as a telling indictment of the Collegium system.

Former Attorney General of India Mukul Rohatgi, in an article published in a book — Appointment of Judges to the Supreme Court of India: Transparency, Accountability, and Independence — edited by Arghya Sengupta and Ritwika Sharma, makes some important observations regarding collegium.

While explaining the evolution of the collegium system, he writes, “The operation of the collegium system in the last two decades has created much dissatisfaction. One of the major concerns is that the reasons for substantive appointments and non-appointments made by the collegium were not known because of the completely opaque nature of the process. Also, certain egregious appointments raised serious apprehensions about its suitability. Further, the collegium was founded in an invalid interpretation of the Constitution, since the institution of the collegium has no constitutional warrant and was the creation of the Court pursuant to the Second Judges case. These principled and practical deficiencies in the operation of the collegium led to several reform proposals across the years, which materialised in the form of the 99th Amendment Act and the NJAC Act.”

For the judiciary to remain independent, it must first acknowledge its own flaws and correct them. Ignoring the cracks in the Collegium only invites external intervention, which would compromise its autonomy. Fair criticism, therefore, is not to weaken the judiciary but to strengthen it—so that reform comes from within, and credibility is never in doubt. After all, the strength of any system lies not only in being fair but also in appearing fair.

(Shishir Tripathi is a journalist and researcher based in Delhi.)

Views are personal and do not represent the stand of this publication.