Context

·       In constitutional democracies, the legitimacy of public power is not rooted solely in the existence of laws but in a deeper ethos—what South African jurist Etienne Mureinik termed the culture of justification. This principle holds that every act of public authority must be reasoned, explained, and defensible to the people it affects.

·       Ironically, while India’s judiciary often demands such justification from the executive and legislature, it fails to apply the same standard to its own internal functioning—particularly in the opaque system of judicial appointments. The recent controversy surrounding Justice B.V. Nagarathna’s alleged dissent against the elevation of Justice Vipul M. Pancholi brings this contradiction into sharp focus, revealing the undemocratic nature of the Collegium system and its lack of transparency.

Opacity in the Collegium: A Democratic Deficit

·       The Supreme Court of India has styled itself as a guardian of transparency and accountability. Yet when it comes to its own appointment mechanisms, especially the Collegium system, it resists openness. The Collegium—comprising the five senior-most judges of the Supreme Court—was institutionalised through judicial rulings in the Second Judges Case (1993) and Third Judges Case (1998). These appointments are deliberated behind closed doors and made public through brief, unexplained resolutions.

·       Justice Nagarathna’s reported dissent highlights the dangers of such secrecy. Despite apparently raising serious objections to Justice Pancholi’s elevation, the Collegium’s public resolution suggested unanimity. Her concerns came to light only through media leaks, and the written note detailing her opposition remains unavailable to the public. Within 48 hours, the government confirmed the appointment, and it remains unclear whether her dissent was ever formally acknowledged or weighed.

·       This disjunction between private deliberations and public disclosures illustrates how the Collegium’s secrecy undermines institutional legitimacy and corrodes the principle of public justification.

The Flawed Rationale for Secrecy

·       The Court has traditionally justified the opaque nature of the Collegium on two grounds: protecting candidates’ reputations and insulating the process from political interference. However, these arguments do not hold up under scrutiny.

·       In several democratic jurisdictions, transparency in judicial appointments coexists with fairness and dignity. The United Kingdom’s Judicial Appointments Commission, for instance, clearly outlines selection criteria and assessment methods, while South Africa’s Judicial Service Commission conducts candidate evaluations in public hearings. These models demonstrate that institutional legitimacy is best achieved through openness, even if not without flaws.

·       India’s continued insistence on secrecy places it at odds with these democratic practices. If concerns about reputational harm are genuine, a better approach would be to design a disclosure system that balances honesty with respect. Similarly, political interference is not avoided through confidentiality; the executive still delays or obstructs certain appointments, proving that opacity is not a shield but a veil that hides dysfunction.

Democratic Stakes and Constitutional Consequences

·       The implications of this issue extend far beyond a single judicial appointment. The individuals selected to interpret the Constitution wield power that shapes Indian democracy for generations. Judges decide on fundamental rights, federal balance, and the boundaries of state power. In entrusting unelected judges with such influence, democratic systems rely on their moral authority—an authority that must be anchored in public trust.

·       This trust is severely undermined when the judiciary refuses to provide reasons for its decisions, especially when internal dissent is concealed. Transparency in appointments is not a mere procedural nicety; it is central to upholding constitutional morality. If public power must always be justified, the judiciary—charged with protecting the Constitution—must adhere to this obligation most faithfully.

Towards Institutional Reform and Justified Authority

·       To maintain its credibility and autonomy, the Indian judiciary must reform the Collegium system. The current model of secretive deliberations is incompatible with the democratic aspiration for transparency from all state institutions.

·       The limited move toward disclosure seen briefly in 2018, when more detailed reasoning accompanied Collegium recommendations, was a step in the right direction. Its reversal marked a troubling retreat into opacity. Rather than insulating the judiciary, such secrecy alienates it from public confidence.

·       Contrary to fears that transparency would weaken judicial independence, it could in fact bolster it. A judiciary that holds itself to the same standards it imposes on others reinforces its role as a moral and constitutional authority. Justification, not secrecy, is the foundation of public legitimacy. Through openness and reasoned explanation, the Court would reaffirm its place in a democracy that thrives on accountability.

Conclusion

·       The controversy surrounding Justice Nagarathna’s dissent underscores a fundamental inconsistency: the Supreme Court demands transparency and accountability from other branches of government but shields its own decisions from public view. This double standard is unsustainable.

·       If the judiciary continues to operate in secrecy, it risks eroding the very legitimacy that enables its constitutional authority. The Collegium system must evolve toward greater transparency. Refusing to do so would not only deny the public the justification they deserve but also betray the very principle on which constitutional democracies rest—that all power, no matter how high, must be justified.