26 Aug Judicial Appointments in India: End the Culture of Secrecy

Subject: Indian Polity & Governance
UPSC GS Paper: GS-II — Judiciary, Constitutional Bodies, Transparency & Accountability
Prelims Relevance: High
Mains Relevance: High
Keywords: Collegium System, Judicial Independence, Judicial Accountability, Transparency, NJAC, Three Judges Cases, Separation of Powers, Nepotism, Articles 14 & 16, Basic Structure

1. Why in the News?

The debate over transparency in judicial appointments has resurfaced after Justice Ujjal Bhuyan of the Supreme Court questioned the lack of reasons being disclosed in recent Collegium resolutions.

Justice Bhuyan argued that citizens have a legitimate interest in knowing how judges are selected and why one candidate is preferred over another. He also warned that excessive secrecy can weaken public confidence in the judiciary.

The issue assumes greater significance because the Collegium is a judicially evolved mechanism and is not explicitly mentioned in the Constitution. It emerged through the landmark Three Judges Cases.

Therefore, the central question is not simply whether the Collegium should continue. Rather, it is:

Can judicial independence be protected while making judicial appointments more transparent and accountable?

2. Which UPSC Subject is Related?

Primary Subject: Indian Polity & Governance — GS-II

This issue connects with:

• Judiciary and judicial independence
• Separation of powers
• Constitutionalism
• Transparency and accountability
• Appointment of judges
• Basic Structure Doctrine
• Right to Information
• Checks and balances
• Institutional reforms

Related Mains Themes

Judicial independence + accountability + transparency = Democratic legitimacy

This is an important framework for UPSC Mains answers.

3. Understanding the Collegium System

The Collegium System is the mechanism through which judges of the Supreme Court and High Courts are recommended for appointment and transfer.

However, it is important to remember:

The Constitution does not expressly establish the Collegium System.

It evolved through judicial interpretation of constitutional provisions relating to judicial appointments.

Evolution of the Collegium

Case	Year	Key Development
First Judges Case — S.P. Gupta v. Union of India	1981	Executive had primacy
Second Judges Case — SC Advocates-on-Record Association v. Union of India	1993	Judicial primacy established
Third Judges Case — Presidential Reference	1998	Collegium structure and procedure clarified

The 1993 judgment shifted the balance towards the judiciary, while the 1998 Presidential Reference further institutionalised the Collegium mechanism.

Prelims Fact

Supreme Court Collegium = CJI + four senior-most Supreme Court judges.

For High Court appointments, the process also involves the concerned High Court Collegium and the Supreme Court Collegium.

4. Why Was the Collegium Created?

The underlying objective was to protect judicial independence.

If the executive had unrestricted control over judicial appointments, there could be a possibility of:

• Political influence
• Executive pressure
• Appointment of politically favourable judges
• Weakening of judicial review
• Erosion of separation of powers

Therefore, judicial primacy was considered a safeguard against excessive executive interference.

The principle is closely connected with the Basic Structure Doctrine, under which judicial independence is regarded as a fundamental constitutional value.

5. The Problem: Independence Without Accountability?

The problem arises when independence becomes synonymous with secrecy.

The Collegium does not function like a conventional constitutional body with a detailed statutory selection framework. There has historically been limited public information regarding:

• How candidates are shortlisted
• What exact eligibility criteria are applied
• Why one candidate is preferred over another
• Why a recommendation is rejected
• Why a candidate is deferred
• How professional competence is compared
• How representation and diversity are considered

Justice Bhuyan has specifically criticised the recent absence of reasons in Collegium resolutions.

Consequently, the debate has shifted from “Who should control appointments?” to “How should appointments be made transparently?”

6. Why Does Nepotism Become a Concern?

Judicial appointments involve a highly specialised legal community. As a result, professional networks and family connections can naturally become significant.

However, the absence of publicly known selection criteria makes it difficult to distinguish between:

Merit + family background

and

Family background + institutional advantage.

The issue became particularly visible when, in 2018, the Union government flagged 11 of 33 names recommended by the Allahabad High Court Collegium as having relatives who were sitting or retired judges.

The editorial also points to a 2025 assessment in which roughly 10 of 33 Supreme Court judges were reported to have familial links with former judges. This does not by itself prove nepotism, but it strengthens the argument for objective selection criteria and greater disclosure.

Important UPSC Perspective

A candidate having a relative in the judiciary does not automatically mean that the appointment is unfair.

The real constitutional concern is:

Whether every eligible candidate receives an equal and objective opportunity to be considered.

This connects the issue with Articles 14 and 16.

7. Transparency Is Already a Constitutional Value

Transparency is not merely an administrative preference.

It is connected with broader constitutional principles such as:

Article 14

Equality before law and equal protection of laws.

Article 16

Equality of opportunity in public employment.

Article 19

Freedom of speech and expression, which supports informed public discussion.

Article 50

Separation of judiciary from executive in the public services of the State.

Moreover, the Supreme Court has itself repeatedly emphasised openness in matters concerning public institutions.

The MediaOne judgment (2023) is particularly relevant to the present debate because the Court criticised excessive reliance on sealed-cover procedures and stressed the importance of transparency and open justice.

Thus, a possible contradiction emerges:

A judiciary that demands transparency from other institutions should also demonstrate reasonable transparency in its own institutional functioning.

8. What Does Recent Data Tell Us?

The Judicial Transparency Index, released by Vidhi Centre for Legal Policy’s JALDI initiative, provides a broader picture of institutional transparency.

Some important findings include:

• 21 High Courts have online RTI portals.
• No High Court publishes its case-allocation criteria.
• Only 87 of 813 judges across seven High Courts publicly disclose their assets to some degree.
• Only two High Courts publish information regarding disciplinary sanctions against district judicial officers.
• Only five High Courts had published budgets for FY 2025–26.

These figures demonstrate that judicial transparency is not limited to appointments.

It also involves:

appointments → case allocation → assets → disciplinary proceedings → budgets → administrative functioning

Therefore, transparency must be viewed as an institution-wide principle.

9. Why Transparency Matters

A. Strengthens Public Trust

Courts exercise enormous constitutional authority.

They decide matters involving:

• Fundamental rights
• Elections
• Government policies
• Personal liberty
• Property
• Federal disputes
• Constitutional validity of laws

Therefore, citizens need confidence that judges are selected through a fair process.

B. Reduces Perception of Nepotism

Even if an appointment is completely merit-based, unexplained decisions can create a perception of favouritism.

Transparency therefore protects not only citizens but also honest judges.

When reasons are publicly available, a meritorious candidate does not remain dependent on informal networks or speculation.

C. Improves Institutional Accountability

Transparency allows:

Public scrutiny → institutional reflection → correction of weaknesses → greater legitimacy

However, accountability does not mean that judges should become vulnerable to political pressure.

D. Encourages Diversity

A transparent selection framework can encourage consideration of:

• Gender diversity
• Regional representation
• Social diversity
• Representation from different sections of the Bar
• Representation of first-generation lawyers

This is particularly important because the judiciary must reflect the diversity of the society it serves.

10. But Can Excessive Transparency Also Be Dangerous?

Yes.

Judicial appointments involve sensitive information.

For example:

• Confidential intelligence inputs
• Allegations about professional misconduct
• Personal information
• Integrity-related assessments
• Sensitive background checks

Publishing everything could unfairly damage an individual’s reputation.

Therefore, the solution should not be absolute transparency.

Instead, India needs:

Maximum institutional transparency + minimum necessary confidentiality.

Confidential inputs regarding integrity can remain protected, while the general criteria, procedure and reasons for selection can be made public.

11. Collegium vs NJAC: The UPSC Connection

The debate cannot be understood without the National Judicial Appointments Commission (NJAC).

The Constitution (99th Amendment) Act, 2014 and NJAC Act, 2014 sought to replace the Collegium with a broader appointment mechanism involving judicial and non-judicial members.

The proposed NJAC included:

• Chief Justice of India
• Two senior-most Supreme Court judges
• Union Law Minister
• Two eminent persons

The framework came into force in 2015.

However, in Supreme Court Advocates-on-Record Association v. Union of India (2015), the Supreme Court struck down the NJAC framework as unconstitutional.

The Court restored the Collegium system.

The central concern was that excessive executive participation could compromise judicial independence, which forms part of the Constitution’s basic structure.

UPSC Trap

NJAC was not rejected because transparency was considered undesirable.

Rather, the concern was that the proposed structure could undermine judicial independence.

Therefore:

The real challenge is to improve transparency without sacrificing independence.

12. What Can India Learn From Other Democracies?

The experience of other constitutional democracies suggests that independence and transparency need not be mutually exclusive.

United Kingdom

The Judicial Appointments Commission publicly advertises vacancies and uses structured procedures for selection.

South Africa

The Judicial Service Commission has a comparatively open appointment process, including public interviews.

These models cannot simply be copied because India’s constitutional structure is different.

Nevertheless, they demonstrate that judicial independence can coexist with institutional openness.

13. Way Forward: Reform, Not Retreat

The answer is not to dismantle the Collegium overnight.

Instead, it should be modernised.

1. Publish Anticipated Vacancies

The judiciary should disclose expected vacancies in advance.

2. Create Clear Eligibility Criteria

Candidates should be assessed through publicly known parameters such as:

• Professional competence
• Integrity
• Judgments/work record
• Constitutional understanding
• Diversity
• Experience

3. Give Reasoned Recommendations

The Collegium should explain why a candidate is recommended and, where possible, why another candidate is not.

4. Create a Permanent Secretariat

A professional secretariat can maintain:

• Candidate databases
• Performance records
• Vacancies
• Eligibility information
• Conflict-of-interest disclosures

5. Higher Scrutiny for Relatives

A judicial family connection should not create an automatic disqualification.

However, candidates with such connections can undergo enhanced scrutiny and explicit disclosure.

6. Protect Confidential Information

Integrity-related confidential inputs should remain protected.

Therefore, transparency should concern the process and criteria, rather than indiscriminate publication of sensitive personal material.

7. Improve Diversity

A transparent selection matrix can help broaden representation within the higher judiciary.

14. The Constitutional Balance

The debate can be represented through a simple UPSC framework:

Judicial Independence
↓
Protection from political interference
↓
But not institutional opacity
↓
Transparent criteria + reasoned decisions
↓
Accountability
↓
Public confidence
↓
Judicial Legitimacy

The Constitution requires these values to work together.

As a result, the choice should not be:

Executive control OR Collegium secrecy

but rather:

Independent judiciary + transparent appointment process + accountable institutions.

Prelims Practice Questions

Question 1

Consider the following statements regarding the Collegium System in India:

1. The Collegium System is explicitly mentioned in the Constitution of India.
2. The Second Judges Case shifted primacy in judicial appointments towards the judiciary.
3. The Third Judges Case clarified and expanded the Collegium mechanism.
4. The National Judicial Appointments Commission replaced the Collegium permanently.

Which of the statements given above is/are correct?

A. 1 and 4 only
B. 2 and 3 only
C. 1, 2 and 3 only
D. 2, 3 and 4 only

Answer: B. 2 and 3 only

Explanation

Statement 1 — Incorrect: The Collegium is not explicitly mentioned in the Constitution. It evolved through Supreme Court judgments.

Statement 2 — Correct: The Second Judges Case (1993) established judicial primacy in appointments.

Statement 3 — Correct: The Third Judges Case (1998) clarified the Collegium’s composition and functioning.

Statement 4 — Incorrect: The NJAC attempted to replace the Collegium but was struck down by the Supreme Court in 2015.

UPSC Learning: Remember the sequence:

1981 → Executive Primacy
1993 → Judicial Primacy
1998 → Collegium Clarification
2015 → NJAC Struck Down

Question 2

With reference to transparency in the Indian judiciary, consider the following statements:

1. No High Court currently publishes its criteria for allocation of cases among benches.
2. The Collegium System is a constitutional body created by an express provision of the Constitution.
3. The Supreme Court’s rejection of the NJAC was linked to concerns regarding judicial independence.

Which of the statements given above is/are correct?

A. 1 and 3 only
B. 2 only
C. 1 and 2 only
D. 1, 2 and 3

Answer: A. 1 and 3 only

Explanation

Statement 1 — Correct: The 2026 Judicial Transparency Index reports that no High Court publishes its case-allocation criteria.

Statement 2 — Incorrect: The Collegium is a judicially evolved mechanism, not a constitutional body expressly created by the Constitution.

Statement 3 — Correct: The Supreme Court struck down the NJAC in 2015, with judicial independence being a central constitutional concern.

UPSC Mains Question

“Judicial independence cannot become a justification for institutional opacity. Examine the need to reform the Collegium System while preserving the independence of the judiciary.”

(Answer in 250 words)