The Collegium's Opacity Crisis

Introduction 

Justice B.V. Nagarathna's dissent in the Supreme Court Collegium's recommendation of Justice Vipul M. Pancholi presents a critical juncture in India's constitutional jurisprudence on judicial appointments. This case illuminates the legal tension between Article 124(2) of the Constitution, the judge-made Collegium system, and the fundamental principle of transparency in constitutional governance. 

How did the Current Appointment System Evolve? 

Constitutional Provisions: 

• Article 124(2) of the Constitution provides that Supreme Court judges shall be appointed by the President "after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary." Article 217 contains similar provisions for High Court appointments. 

The Judges Cases Trilogy: 

The current Collegium system emerged through judicial interpretation in three landmark cases: 

• First Judges Case (1981): In S.P. Gupta v. Union of India (1981 Supp SCC 87), the Supreme Court held that "consultation" in Article 124(2) did not mean "concurrence," allowing executive primacy in appointments. 
• Second Judges Case (1993): Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441 reversed the First Judges Case, establishing that "consultation" means "concurrence" and creating the Collegium system with the Chief Justice of India and two senior-most judges. 
• Third Judges Case (1998): In Re Presidential Reference (1998) 7 SCC 739 expanded the Collegium to five judges and detailed the consultation process, emphasizing that appointments must be based on merit, integrity, and other relevant factors. 

What Legal Deficiencies Plague Current Practice? 

Violation of Natural Justice Principles: 

The Nagarathna dissent reveals procedural irregularities that violate established principles of natural justice: 

• Audi Alteram Partem: The principle that both sides must be heard appears compromised when dissenting views are neither recorded nor disclosed. 
• Reasoned Decision-Making: In Maneka Gandhi v. Union of India (1978), the Court established that procedural fairness requires reasoned decisions. The Collegium's skeletal resolutions fail this test. 

Article 14 and the Right to Information: 

• Constitutional Right to Information: In State of U.P. v. Raj Narain (1975) 4 SCC 428, the Court recognized the public's right to know governmental functioning. Secretary, Ministry of I&B v. Cricket Association of Bengal (1995) 2 SCC 161 extended this to judicial proceedings affecting public interest. 
• RTI Act, 2005: Section 8(1)(j) exempts information that would impede the process of justice, but this cannot be a blanket exclusion for all appointment deliberations, particularly when concerning institutional integrity. 

Does Case Law Support Greater Transparency? 

• Namit Sharma v. Union of India (2013): The Court held that transparency is a facet of Article 14, requiring disclosure unless specifically exempted. 
• Central Public Information Officer v. Subhash Chandra Agarwal (2020): The Court emphasized that opacity in public institutions undermines democratic accountability. 
• Justice K.S. Puttaswamy (Retd.) v. Union of India (2017): While recognizing privacy rights, the judgment distinguished between individual privacy and institutional transparency obligations. 

Comparative Constitutional Analysis: 

• British Precedent: The Constitutional Reform Act 2005 established the Judicial Appointments Commission with statutory transparency requirements, demonstrating that openness enhances rather than undermines judicial independence. 
• South African Model: Section 174 of the South African Constitution requires public interviews by the Judicial Service Commission, with reasons provided for appointments and rejections. 

What Does the Nagarathna Dissent Reveal About Legal Shortcomings? 

Procedural Irregularities: 

The dissent highlights several legal concerns: 

• Seniority Principle: Justice Pancholi's elevation despite ranking 57th in all-India seniority appears to contravene the Third Judges Case emphasis on merit-based appointments considering seniority. 
• Regional Representation: The appointment of a third Gujarat High Court judge while seven High Courts lack representation may violate the diversity mandate established in Supreme Court Advocates-on-Record Association v. Union of India (2015) . 
• Consultation Deficiency: The failure to consult Justice Pardiwala, a former Gujarat High Court judge, contradicts the Collegium's own guidelines requiring consultation with knowledgeable Supreme Court judges. 

Constitutional Principles at Stake: 

Separation of Powers: In Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, the Court established judicial independence as part of the Constitution's basic structure. However, this independence must be balanced with accountability. 

Rule of Law: Secretary of State v. Mask & Co. established that rule of law requires that power be exercised according to known principles. The Collegium's opacity violates this fundamental tenet. 

What Legal Remedies Can Restore Constitutional Balance? 

Constitutional Obligations: 

The Constitution's Preamble promises "justice" and "equality." These cannot be achieved through secret proceedings that lack reasoned justification. Article 32, the "heart and soul" of the Constitution, empowers citizens to seek transparency in constitutional processes. 

Statutory Framework Needed: 

The failed National Judicial Appointments Commission Act, 2014 (struck down in Supreme Court Advocates-on-Record Association v. Union of India (2015) 16 SCC 1) attempted statutory regulation. While the Court correctly identified executive interference concerns, it failed to propose alternative transparency mechanisms. 

Proposed Legal Standards; 

• Written Reasons: All Collegium decisions must include detailed, published reasons, subject only to specific redactions for legitimate privacy concerns. 
• Dissent Recording: Minority views must be recorded and published, following the Court's own practice in constitutional benches. 
• Criteria Disclosure: Appointment criteria must be public, specific, and uniformly applied. 
• Appeal Mechanism: A limited review process for procedural violations, similar to the administrative law principle in Council of Civil Service Unions v. Minister for Civil Service [1985]. 

Conclusion 

Justice Nagarathna’s dissent highlights that judicial independence cannot be a shield against constitutional accountability. True legitimacy rests on transparency, and insulating the collegium from scrutiny risks eroding public trust. A democratic republic demands a judiciary that is both independent and answerable, ensuring that authority flows from constitutional principles rather than opacity.