Introduction
The independence of the judiciary is one of the foundational pillars of Indian democracy. It is safeguarded not only by freedom from executive interference but also by citizens’ faith in the fairness and transparency of judicial appointments, transfers, and elevations. However, recent developments in the functioning of the Supreme Court Collegium have once again reignited debates about its opaque procedures.
A notable dissent came from Justice BV Nagarathna, who disagreed with the Collegium’s recommendation to elevate Justice Vipul Pancholi to the Supreme Court, despite his relatively low position (57th in the all-India seniority list) and a controversial transfer history. This rare dissent has brought to the forefront questions about seniority, supersession, transfers, and the perceived arbitrariness in judicial appointments.
This article analyses the challenges within the Collegium system, its implications on judicial independence, and the pressing need for greater transparency.
The Question of Supersession
India follows a convention where the senior-most judge of the Supreme Court is elevated as the Chief Justice of India (CJI). Although this convention has been broken only twice in history, leaving lasting scars, it continues to be respected at the highest level.
However, at the High Court level, seniority is often disregarded. The Collegium has, in several instances, recommended relatively junior judges for elevation to the Supreme Court while overlooking senior judges, including women with impeccable records. Such decisions are often announced without any explanation.
The lack of reasoning behind these recommendations raises concerns of arbitrariness, which is as damaging as arbitrariness itself. As Justice Jasti Chelameswar once remarked, Collegium proceedings are “absolutely opaque and inaccessible both to public and history, barring occasional leaks.” This observation remains relevant even today.
Supersession not only affects the morale of overlooked judges but also sends a troubling message to the legal fraternity that seniority is fragile and subject to disregard without justification. This undermines confidence in the judiciary.
The Problem of Judicial Transfers
Transfers of High Court judges are authorized under Article 222 of the Constitution and were originally intended to serve the cause of better administration. However, in practice, transfers are often perceived as punitive rather than administrative.
Recent years have witnessed an unsettling trend where senior judges are shifted from one High Court to another, only to be given insignificant assignments, effectively reducing their seniority and career prospects. In some cases, judges have faced multiple transfers in a short span of time, leading to suspicions of punitive action under the garb of “public interest.”
The International Commission of Jurists has flagged this issue, highlighting the vagueness of “public interest” as a justification. Without clear reasoning, the difference between a genuine transfer and a punitive one becomes impossible to discern.
Moreover, transfers can distort the career trajectory of judges, especially since elevation to the Supreme Court often depends on the principle of merit-cum-seniority. Arbitrary transfers can thus effectively deny judges a chance at elevation without any public explanation.
High Courts Treated as Subordinate Institutions
Although the Supreme Court has repeatedly emphasized that High Courts are constitutional courts and not subordinate bodies, the manner in which transfers are handled paints a different picture. Judges transferred to new High Courts often face delays in allocation of meaningful work, wasting valuable judicial time and undermining the dignity of their office.
Such treatment not only affects the individual judge but also weakens the constitutional status of High Courts, making them appear subordinate to the Supreme Court. This undermines judicial federalism, a principle central to India’s constitutional design.
Lessons from Other Democracies
The lack of transparency in India’s Collegium system becomes starker when compared to practices in other democracies:
- United Kingdom: Judicial appointments are managed by a Judicial Appointments Commission, which publicly advertises vacancies, sets clear criteria, conducts interviews, and publishes reasons for its selections.
- United States: Though political in nature, the appointment process is transparent. Nominees face open Senate hearings, allowing public scrutiny.
Neither system is flawless, but both acknowledge that legitimacy flows from openness. By contrast, in India, Collegium resolutions are often terse announcements, with little to no explanation. While Chief Justice DY Chandrachud briefly introduced reasoning citing merit, diversity, or regional balance, this practice has largely been abandoned.
The Role of the Executive
While the Collegium has often been criticized for secrecy, the executive branch also plays a significant role in perpetuating opacity. Collegium recommendations are frequently kept pending for months or even years, leading to erosion of seniority and discouragement for judges awaiting elevation.
Such delays are far from neutral; they have punitive effects. The Supreme Court has itself raised concerns over this practice, but the government continues to exercise influence by “picking and choosing” among Collegium recommendations. This undermines the independence of the judiciary and creates uncertainty in the appointment process.
The Case for Transparency
The solution does not lie in abolishing the Collegium or handing appointments back to the executive, as some critics suggest. Instead, the need of the hour is greater transparency in Collegium proceedings.
The Collegium must publish not only its recommendations but also the reasons behind them. If a relatively junior judge is preferred, the rationale—whether based on merit, diversity, or integrity—must be made public. Similarly, if a transfer is ordered, the grounds for administrative necessity or public interest should be explicitly recorded.
This would allow citizens, legal professionals, and history itself to assess the fairness of decisions. After all, in a democracy, “who will judge the judges” if not the people?
Transparency in judicial appointments is not a privilege granted by the judiciary to the public—it is a constitutional duty. As Justice Louis Brandeis famously said, “Sunlight is the best disinfectant.”
Conclusion
The independence of the judiciary cannot be secured merely by insulating it from executive interference. It also requires that the judiciary command the trust of the people, which can only be sustained through fairness and openness.
Opaque decisions regarding appointments, supersession, and transfers weaken that trust. By refusing to disclose reasons, the Collegium risks eroding the very confidence it is meant to uphold.
Therefore, it is time for the Collegium to embrace transparency as a constitutional necessity. Citizens have the right to know why some judges are elevated while others are overlooked, and why transfers are ordered in the name of public interest.
Only when judicial appointments and transfers are subjected to the disinfecting light of public scrutiny can faith in the judiciary be truly preserved.
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