Context

• Constitutional democracies are founded not merely on the authority of written laws but on a deeper principle, what South African jurist Etienne Mureinik described as a culture of justification.
• This principle demands that every exercise of public power must be reasoned, explained, and defended to the people.
• This standard of accountability, though often demanded by the judiciary from the legislature and executive, appears strikingly absent within India’s own system of judicial appointments.
• The controversy surrounding Justice B.V. Nagarathna’s reported dissent against the elevation of Justice Vipul M. Pancholi highlights the opacity of the Collegium system and exposes its democratic deficit.

The Problem of Opacity in the Collegium System

• The Supreme Court of India has long positioned itself as the guardian of transparency and accountability in governance.
• Yet when it comes to its own internal processes, particularly the Collegium system of judicial appointments, it has consistently resisted disclosure.
• Established through judicial decisions in the Second Judges Case (1993) and the Third Judges Case (1998), the Collegium vests appointment power in the five senior-most judges of the Supreme Court.
• These deliberations occur behind closed doors, and their outcomes are often published as terse resolutions devoid of explanation.
• Justice Nagarathna’s dissent illustrates the dangers of this secrecy. Despite her reportedly grave objections, the Collegium’s published resolution presented an appearance of unanimity.
• The public learned of her reservations only through media leaks, and the note she wrote remains inaccessible.
• The government, within 48 hours, confirmed the appointment, leaving unresolved whether her dissent was ever considered.
• This gulf between what happens in the Collegium and what the public is permitted to know exemplifies how secrecy corrodes institutional legitimacy.

Failed Defences of Secrecy

• The Court has traditionally defended its opacity on two grounds: the protection of candidates’ reputations and the avoidance of political pressure.
• On closer examination, both justifications prove unconvincing. Other democracies have managed to reconcile transparency with fairness.
• Britain’s Judicial Appointments Commission openly discloses criteria and assessments, while South Africa’s Judicial Service Commission debates candidates’ suitability in public hearings.
• These systems acknowledge that legitimacy flows from openness, even if imperfections remain.
• By contrast, India’s Collegium continues to function as a private conclave. If reputational harm is a genuine concern, the answer lies not in total secrecy but in carefully structured disclosures that balance Candor with dignity.
• Likewise, fears of political interference are not alleviated by opacity, since the executive still delays or obstructs inconvenient appointments despite the Collegium’s confidentiality.

The Stakes for Democracy

• The debate is not limited to the fate of a single judge. Judicial appointments shape constitutional interpretation for generations, influencing issues from civil liberties to federal balance.
• In democracies, unelected judges are entrusted with significant power precisely because they are expected to safeguard liberty and equality against majoritarian excesses.
• They do not undermine democracy; they enable its deepest commitments.
• But the judiciary’s moral authority rests on public confidence.
• When appointments occur without reasons, or when dissents by serving judges are hidden, the Court undermines its own legitimacy.
• The principle that every exercise of public power must be justified applies with even greater force to an institution tasked with upholding constitutional morality.

Towards Reform: From Concealment to Justification

• If the Indian judiciary is to sustain its authority, the Collegium must embrace reform.
• A system of opaque deliberations is unsustainable in a democracy that increasingly demands transparency from every organ of the state.
• Past experiments, such as the brief period in 2018 when fuller reasons for appointments were disclosed, should not have been abandoned but improved upon.
• To retreat into secrecy is to erode public trust and, with it, the independence the Court seeks to preserve.
• A judiciary that subjects itself to the same standards of openness it demands of others would not weaken its autonomy.
• On the contrary, it would ground its independence in the confidence of citizens and reinforce the democratic culture of justification.
• Only by practicing accountability can the judiciary preserve the legitimacy essential to its constitutional role.

Conclusion

• The controversy surrounding Justice Nagarathna’s dissent exposes a fundamental contradiction: the Supreme Court of India insists on transparency from the executive and legislature while shielding its own decisions from scrutiny.
• This double standard cannot endure. A judiciary that cloaks itself in secrecy risks eroding the very legitimacy that justifies its power.
• The Collegium system must evolve to embrace transparency, not retreat from it and to do otherwise is to deny the principle that sustains every constitutional democracy: that power, however exalted, must always be justified.