The Collegium owes the nation reasons, not silence

Recent events have again exposed the faultlines of the Collegium system. In a rare dissent, Justice BV Nagarathna disagreed with the recommendation to elevate Justice Vipul Pancholi to the Supreme Court, barely three months after Justice NV Anjaria, also from Gujarat, was appointed.

Justice Pancholi stands 57^th in the all-India seniority list, with several senior judges bypassed. Further, his transfer from Gujarat to Patna in 2023 remains under a cloud.

The cumulative effect of such decisions is difficult to ignore: seniority is diluted, regional balance is disturbed and confidence in the process erodes. In an institution where silence has long been the convention, the mere fact of a dissent signals an urgent truth - that opacity breeds suspicion and transparency alone can restore faith.

India has a well-known convention: the senior-most judge of the Supreme Court is elevated as Chief Justice of India. This convention was broken only twice in the past and each time, it left an indelible scar. Since then, the tradition has been respected.

At the High Court level, however, the principle of seniority is frequently disregarded. Recently, the Collegium recommended a relatively junior judge for elevation to the Supreme Court, after a brief tenure as Chief Justice of a High Court. In doing so, it overlooked several senior judges, including women with distinguished records. No reasons were offered. None, it seems, were thought necessary.

It is possible that merit, diversity or regional representation justified the decision. But when reasons are not disclosed, the decision appears arbitrary. The perception of arbitrariness is as damaging as arbitrariness itself. As Justice Chelameswar once observed, Collegium proceedings are “absolutely opaque and inaccessible both to public and history, barring occasional leaks.” He was right.

Supersession carries consequences beyond the affected judge. It sends a signal to the Bar and to puisne judges that seniority is a fragile principle, easily cast aside. It diminishes morale and invites speculation about hidden motives. That is why transparency is vital.

Transfers of High Court judges are authorised under Article 222 of the Constitution. The intention was to facilitate better administration. But in practice, transfers are shrouded in mystery.

In recent months, we have witnessed a disturbing trend. Senior judges of one High Court are transferred to another, only to find themselves saddled with minor assignments and their seniority rendered meaningless. Some judges have even been shifted from one court to another in quick succession. Is this truly for administrative exigency, public interest or is transfer fast becoming a “weapon” of discipline? The act itself may be defended, but the impression it leaves is far more troubling.

The International Commission of Jurists has pointed out that the vagueness of “public interest” as a criterion makes it impossible to distinguish between genuine transfers and punitive ones. When a judge is transferred several times in as many years, is it because of administrative necessity or because the judge has incurred disfavour? Without sufficient cause, the line is blurred.

Transfers have another, subtler effect: they alter prospects. A senior judge in one High Court may find himself demoted in the order of precedence after a transfer. Since elevation to the Supreme Court often depends on merit-cum-seniority, a transfer can effectively end a judge’s chances. This is not a theoretical concern. It has happened. And it raises a troubling question: should a transfer be allowed to distort a judge’s career prospects ‘without any explanation’ or reasons?

The Supreme Court has repeatedly proclaimed that High Courts are not subordinate to it. They are constitutional courts in their own right. Yet, the manner in which transfers are effected suggests otherwise. High Courts are treated as though they are subordinate offices and their judges shuffled about as if on a chessboard.

If a senior judge is transferred from one High Court to another, he or she ought to carry the same dignity, status and responsibilities. Yet, we have seen instances where a senior judge is stripped of meaningful work. In the new court, the judge waits for translation, while precious judicial time is squandered and litigants are left in uncertainty. This is not merely an affront to the individual judge; it strikes at the constitutional position of the High Court itself.

Other democracies have confronted similar questions. In the United Kingdom, a Judicial Appointments Commission publicly advertises vacancies, lays down criteria, interviews candidates and publishes its reasons. In the United States, the process is political, but it is transparent: nominees face open hearings before the Senate. Neither system is perfect, but both recognise that legitimacy flows from openness.

India, by contrast, has chosen to keep its process secret. Collegium resolutions are often bare announcements, with no reasoning. Earlier, under Chief Justice DY Chandrachud, some effort was made to mention diversity, regional balance or merit-cum-seniority. That practice has now been abandoned. What remains is opacity.

The Collegium is not the only malefactor. The government, too, contributes to obscurity. Collegium recommendations are often kept pending for months, sometimes years. This has the effect of eroding a judge’s seniority and discouraging the candidate. Retired judges, senior advocates and many in the legal fraternity have rightly pointed out that such delays are not neutral – they are punitive by effect, if not by intent.

When the executive “picks and chooses” among Collegium recommendations, the independence of the judiciary is imperilled. The Supreme Court itself has expressed concern about this. Yet, the practice continues.

What, then, is the solution? The answer is not to abolish the Collegium, nor to hand appointments back to the executive, as some have suggested. Both would be retrograde. The answer is to open the Collegium to the public eye.

The Collegium must publish not only its recommendations, but also the reasons for them. If a junior judge is preferred over seniors, the basis must be stated – merit, diversity, integrity or any other consideration. If a transfer is ordered, the rationale – administrative necessity, regional balance or conflict of interest – must be clearly recorded. Only then can the public judge whether the decision was fair. Otherwise, in a democracy, who is to judge the judges?

Transparency is not a concession. It is a constitutional duty. Citizens are entitled to know why some are chosen and others passed over. Of all institutions, the judiciary must lead by example.

The independence of the judiciary does not rest only on freedom from executive interference. It rests equally on the faith of citizens that judges are appointed, transferred and elevated with fairness. That faith cannot be nourished by secrecy; it can only be sustained by transparency.

Evoking Brandeis’s favourite dictum that “sunlight is the best disinfectant,” Justice Benjamin Nathan Cardozo in his dissent in Jones v. SEC, added that wrongs “must be dragged to light and pilloried.” It is time, therefore, for the Collegium to lift the veil.

Dhileepan Pakutharivu is an advocate practicing before the Madras High Court.

The views expressed here are solely personal and should not be attributed in any manner to any professional institutions that the author is affiliated.