PYQ Relevance[UPSC 2023] Constitutionally guaranteed judicial independence is a prerequisite of democracy. Comment. Linkage: The 2023 PYQ on judicial independence as a prerequisite of democracy directly relates to the Collegium debate. Concealing Justice Nagarathna’s dissent shows how opacity undermines independence by eroding legitimacy and public trust. True independence requires not just freedom from external control but also internal transparency and accountability. |
Mentor’s Comment
Transparency in judicial appointments is once again under scrutiny. The recent revelation of Justice B.V. Nagarathna’s dissent on a Collegium recommendation, concealed from the public, has sparked fresh debate on the opacity of India’s judicial system. This piece examines why concealing dissent undermines the judiciary’s legitimacy, what is at stake for democracy, and how reforms could restore accountability in the higher judiciary.
Introduction
Constitutional democracies, as South African jurist Etienne Mureinik observed, thrive on a “culture of justification”, the principle that every exercise of public power must be explained and defended. Indian judges have often invoked this idea to hold governments accountable. Yet, when it comes to the judiciary’s own functioning, particularly the Collegium system of judicial appointments, this principle falters. The recent concealment of Justice B.V. Nagarathna’s dissent on the elevation of Justice Vipul M. Pancholi illustrates the problem starkly: the public is denied access to crucial reasoning behind decisions that shape the judiciary itself.
Why is this news significant?
The dissent of a sitting Supreme Court judge on a Collegium recommendation has surfaced through media leaks, not official disclosure. This is striking because the official resolution uploaded on the Court’s website suggested unanimity. The lack of transparency is troubling not just for one appointment but for the credibility of the entire judicial system. For a country where judges decide on critical questions of liberty and constitutional balance, secrecy corrodes legitimacy and deepens the democratic deficit.
Opacity as the defining feature of the Collegium system
- Judge-made law: The Collegium emerged from the Second Judges Case (1993) and was reinforced in the Third Judges Case (1998).
- Private deliberations: Decisions are made by the five senior-most judges of the Supreme Court behind closed doors.
- Minimal disclosure: Until 2017, no explanations were given. Later, skeletal resolutions were published, with only brief reasons disclosed in 2018 before the practice was abandoned.
- Resistance to transparency: Concerns of reputational harm and political interference are cited as justifications for secrecy.
The critical importance of Justice Nagarathna’s dissent
- Grave objections concealed: Reports suggest her reservations were serious, but neither her note nor the majority’s reasoning is accessible to the public.
- Unclear role of the executive: It is uncertain whether her dissent was even communicated to the Union government, which cleared the appointment within 48 hours.
- Democratic deficit: When even dissent within the highest court is hidden, the culture of justification collapses.
Balancing transparency with fairness in judicial appointments
International examples:
- Britain: Judicial Appointments Commission publishes criteria and detailed assessment reports.
- South Africa: Judicial Service Commission conducts public interviews of candidates.
- Indian reality: Transparency is avoided, and even dissent becomes visible only through leaks.
- Balancing act: Protecting reputations requires sensitive disclosure, not complete secrecy.
Democratic stakes of a secretive Collegium process
- Shaping constitutional outcomes: Judges appointed today decide on civil liberties, executive powers, and Union–State relations.
- Institutional legitimacy: Without openness, citizens lose trust in the judiciary.
- Contradiction of standards: Courts demand accountability from governments but exempt themselves.
The urgent need for reform in the Collegium system
- Self-accountability: A judiciary that explains its decisions strengthens, not weakens, its independence.
- Preserving legitimacy: Concealment erodes public trust, while openness anchors authority in people’s confidence.
- Past failures: Transparency initiatives have been sporadic and quickly rolled back.
- Future imperative: Without reform, the judiciary risks losing moral authority, the very foundation of its role in democracy.
Conclusion
The concealment of Justice Nagarathna’s dissent is not an isolated event but a symptom of the deeper opacity in judicial appointments. If the judiciary insists on accountability from other state organs, it must hold itself to the same standards. A transparent Collegium process will not diminish judicial independence; it will enhance legitimacy, anchor democracy in trust, and ensure that the culture of justification applies to all.
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