New Delhi, Nov. 3 -- Judicial independence is indispensable to constitutional democracy, but independence cannot become a justification for institutional secrecy. The continuing controversy over transparency in appointments to India's higher judiciary raises a fundamental question: can an institution entrusted with enforcing accountability remain insulated from scrutiny in the exercise of its own administrative powers? The collegium system was designed to protect judicial appointments from political interference, a concern rooted in India's constitutional experience. Yet the legitimacy of that protection depends on the fairness, consistency and credibility of the process it safeguards. The judiciary routinely requires governments and public authorities to justify decisions, follow established procedures and respect citizens' right to information. It cannot indefinitely maintain a system in which the considerations influencing appointments, elevations and transfers remain only partially accessible. Judicial independence must be protected, but its protection cannot require citizens to accept institutional secrecy as an unquestionable virtue.
The collegium system emerged through successive Supreme Court judgments establishing judicial primacy in appointments to the higher judiciary. Its purpose was to prevent the executive from exercising decisive control over an institution responsible for reviewing government action. However, judicial primacy is not synonymous with institutional infallibility. Selecting judges involves assessments of legal ability, integrity, professional reputation, temperament and suitability for constitutional responsibilities. These considerations are complex, but complexity cannot justify the absence of clear and publicly understood standards. Although the Supreme Court has made collegium resolutions available in recent years, disclosures do not consistently explain why particular candidates are preferred, why others are overlooked or how competing considerations are weighed. Such uncertainty encourages speculation about personal influence, professional connections and inconsistent treatment. Even when appointments are meritorious, insufficient explanation can undermine confidence in their fairness. Public trust requires credible procedures, not merely confidence in individual decision-makers.
The pending petition concerning the Memorandum of Procedure and disclosure of collegium decisions under the Right to Information framework brings this institutional weakness into sharper focus. The prolonged failure to finalise a comprehensive appointments procedure following the Supreme Court's 2015 decision invalidating the National Judicial Appointments Commission reflects an unresolved constitutional responsibility. Both the judiciary and the executive have contributed to an arrangement in which important procedural questions remain unsettled. Meanwhile, vacancies, delayed recommendations and disagreements over appointments continue to affect the functioning of courts. Insufficiently transparent procedures make it difficult to distinguish legitimate institutional disagreements from avoidable administrative obstruction. Judicial appointments cannot remain dependent on opaque negotiations between constitutional authorities. A predictable framework, supported by clear timelines, documented assessments and publicly defensible criteria, would protect judicial autonomy while reducing opportunities for arbitrary intervention. Transparency should also extend to explaining prolonged delays, particularly when vacancies affect access to justice.
There are legitimate limits to disclosure. Judicial appointments frequently involve sensitive professional assessments, confidential consultations and allegations that may never be substantiated. Making every deliberation public could damage reputations, discourage candid evaluations and expose candidates to unfair scrutiny. But confidentiality must serve a clearly defined institutional purpose rather than operate as a general shield against accountability. The distinction between protecting sensitive information and withholding reasons for consequential decisions is crucial. A credible system could disclose selection criteria, broad grounds for recommendations, procedural timelines and final decisions while safeguarding genuinely confidential material. It could also establish mechanisms for reviewing complaints and addressing conflicts of interest. Such reforms would not require surrendering judicial primacy to the political executive. They would ensure that judicial authority operates within a transparent and consistently applied framework.
The larger danger lies in allowing this debate to become another confrontation between the judiciary and the government. Executive control over appointments would threaten the independence necessary for constitutional adjudication, but unchecked institutional discretion carries risks of its own. Neither political influence nor judicial opacity offers a satisfactory foundation for public confidence. Judges derive their authority from the Constitution, not electoral mandates, making the credibility of their selection particularly important. The judiciary's moral authority rests not merely on the judgments it delivers but also on the standards it applies to itself. India needs an appointments system that preserves independence, rewards merit, encourages diversity and commands public confidence through demonstrable fairness. The answer is neither executive dominance nor unquestioned judicial discretion. It is an accountable framework in which independence and transparency reinforce each other. Judicial independence deserves protection, but public trust requires institutions willing to explain how power is exercised, including their own.
Published by HT Digital Content Services with permission from Millennium Post.