Transparency and Accountability in Judicial Appointments

The functioning of constitutional democracies extends beyond written laws to what is described as a "culture of justification". Etienne Mureinik, a South African professor of law, emphasized that every exercise of public power must be explained and defended. This principle, often invoked by Indian judges, is central to ensuring accountability from the state. However, recent events challenge this notion within India's judicial system.

The Collegium System and Lack of Transparency

• The Collegium system, established through the "Second Judges Case" (1993) and reinforced in the "Third Judges Case" (1998), comprises the five senior-most judges of the Supreme Court responsible for appointing members of the higher judiciary.
• This system has traditionally operated with minimal transparency, recording decisions privately and rarely providing explanations.
• In 2017, the Collegium began publishing its resolutions, but these were often skeletal and lacked substantial reasoning.
• A brief period in 2018 saw fuller reasons being disclosed, but this practice was discontinued amid concerns over damaging reputations.

Justice B.V. Nagarathna's Dissent

Justice B.V. Nagarathna's dissent on the recommendation to elevate one of the Judge highlights the system's opacity. Her objections, described as "grave," were not mentioned in the Collegium's resolution, raising questions about transparency and accountability.

• The public learned about the dissent through media reports, not through official channels.
• The lack of disclosure raises concerns about the Collegium's resistance to transparency and democratic accountability.
• The dissent might concern only a single appointment, but the absence of public justification is seen as a systemic flaw.

Arguments for Transparency and Democratic Legitimacy

• Secrecy in the Collegium process is defended on grounds that openness might harm reputations and expose the system to political pressures.
• However, such claims are deemed weak when compared to practices in other democracies like Britain's Judicial Appointments Commission and South Africa's Judicial Service Commission, where criteria and assessments are made public.
• Secrecy has not prevented political interference, as the executive can delay or stonewall recommendations.

Implications for India's Democracy

The process of judicial appointments directly impacts India's democracy, as judges influence crucial constitutional questions concerning civil liberties, executive power, and federalism. The opacity in the Collegium system undermines institutional legitimacy and accountability.

• The judiciary is expected to be an independent arbiter, protecting rights against majoritarian excesses and maintaining the balance of power.
• For the judiciary to uphold its authority, the appointment process must adhere to high standards of accountability and transparency.
• Reforms are necessary to mitigate the culture of concealment and to fortify the judiciary's independence within the public's trust.