Justice Ujjal Bhuyan flags return of opacity in Collegium; slams appointment of judges who make unconstitutional remarks

Supreme Court Justice Ujjal Bhuyan on Saturday observed that the failure to disclose reasons in collegium proposals concerning the appointment of judges does a great disservice to judges and goes against public interest.

He added that such opacity in collegium resolutions also create space for undesirable candidates to enter the judiciary who then make unconstitutional remarks.

In this regard, Justice Bhuyan cited the example of a controversial speech given by a former Allahabad High Court judge in 2024 at a VHP event, when he made certain veiled references against Muslims.

"By not giving reasons, the institution actually does a disservice to many judges who are genuinely outstanding and have done tremendous work. Conversely, by withholding reasons, we also create space for individuals to enter the judiciary who may later describe groups of people (with references to their treatment of) ‘ants’ and make other remarks that are wholly unconstitutional and contrary to the values of the Constitution," remarked Justice Bhuyan.

Among other comments, the Allahabad High Court judge in question had reportedly said,

"In our country, we are taught not to harm even the smallest animals, not to kill ants. But in your culture, from a young age, children are exposed to the slaughter of animals. How can you expect them to be tolerant and compassionate?"

In his speech today, Justice Bhuyan took exception to such remarks went on to add that judicial appointments must follow proper discussions and reasons.

"What harm is caused if there is informed public debate on such decisions?” Justice Bhuyan asked.

He also recalled that the Collegium’s proposal to appoint Senior Advocate Saurabh Kirpal as a High Court judge was not cleared by the Central government despite the Collegium reiterating its recommendation. 

“I would say the reasons given by the Supreme Court Collegium were quite convincing. At least, I am convinced by the reasoning,” said Justice Bhuyan. 

The judge speaking at a panel discussion held at the launch of "The Judicial Transparency Index: Assessing Disclosure of Information by the Supreme Court and the High Courts," a report by legal think-tank Vidhi's JALDI initiative.

In his keynote address, Justice Bhuyan said that the JALDI team should also to look into the aspect of opacity in the collegium system.

"Deliberations over the elevation and transfer of judges remain confidential; reasons for rejecting or deferring a recommendation are rarely disclosed in full; and the criteria applied are not codified in any publicly accessible instrument comparable to the Memorandum of Procedure's own limited disclosure," he added.

In the ensuing panel discussion, Justice Bhuyan noted that earlier, Collegium resolutions were supported by some reasons, even if they were not exhaustive. 

“Some may even say they were somewhat formulaic or copy paste in nature. But at least some reasons were given to justify the recommendations. I have noticed that the last three collegium resolutions contain no reasons whatsoever. Is this a step back from the principle of transparency?” he added.

Citizens have a right to know what is happening in the courts and to know who their judges are, the judge maintained. 

The discussion also featured Senior Advocates Aditya Sondhi and Saurabh Kirpal. 

Senior Advocate Kirpal agreed with Justice Bhuyan that reasons should be given for individuals are cleared for judgeship. 

“Those reasons should be objective rather than the kind of copy paste reasons Justice Bhuyan referred to. They must be genuine. When you elevate someone, you also have to satisfy the Bar as to why others, who seemingly possess the same qualities, were not elevated. What was exceptional about that particular individual?” he added. 

He explained that such transparency would also serve as a check on the judiciary as well. 

“Requiring reasons would act as a check on the collegium itself. It would prevent what others, not I, have described as arbitrary and capricious decisions in rejecting candidates. It is a powerful institutional check on the judiciary,” he said. 

He opined that the public is entitled to know what kind of people are sitting in the Supreme Court. 

“As informed citizens, they can then form their own opinions,” he said. 

He also disagreed with notions of judges’ actions being described as “the tyranny of the unelected." Judges deserve protection, he said. However, this also means that judges are expected to be transparent to inspire public confidence in its functioning, he added.

“Judges must be protected. But in the absence of the kind of accountability that is imposed on the executive through elections or on governments through judicial decisions, the obligation on judges themselves is that much greater. Their legitimacy and public confidence must come from their willingness to share information and to say, ‘we have nothing to hide.’”

Senior Advocate Sondhi said that he agreed that the disclosure of reasons in Collegium resolutions is a welcome practice. However, in some cases, such as when income is a factor for the refusal to elevate a person to judgeship, such information can be withheld. 

“A civil rights lawyer, a human rights lawyer or a labour lawyer may not satisfy an income threshold. Is that really a reflection of their competence? So, personally, I think reasons should not be assigned in such cases,” he explained. 

He went on to add that the burden to ensure transparency in judicial appointments should not rest on the judiciary alone. 

“If we are speaking about transparency in the process of judicial appointments and elevations, can the government also tell us why a particular file has not been cleared even three years after the collegium has reiterated the recommendation?” he asked. 

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