Collegium System and the Culture of Justification: Justice Nagarathna’s Dissent

By Suryavanshi IAS

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Introduction

Constitutional democracies thrive not only on written laws but also on what South African scholar Etienne Mureinik termed the “culture of justification” — the idea that every exercise of public power must be explained and defended. In India, courts have often invoked this principle to demand accountability from the executive and legislature. However, the recent media reports of Justice B.V. Nagarathna’s dissent over the elevation of Justice Vipul M. Pancholi reveal that this culture of justification stops at the Collegium’s doors.

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The Collegium’s Opacity

• Second Judges Case (1993) and Third Judges Case (1998) created the Collegium system.

• The five senior-most judges of the Supreme Court decide on appointments to the higher judiciary.

• Deliberations remain private, reasons are not fully disclosed, and dissent — when it occurs — is hidden from the public eye.

In the Pancholi case, despite grave objections raised by Justice Nagarathna, the Collegium’s official resolution displayed “unanimity.” The dissent note was not made public and may not even have been shared with the Union Government.

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Problems with Non-Transparency

1. Democratic Deficit – Judicial power flows from people’s trust. Lack of reasoning in appointments weakens legitimacy.

2. Inconsistency – Courts demand justification from other state organs but exempt themselves.

3. Erosion of Institutional Credibility – Citizens learn of dissent only through leaks, not official disclosures.

4. Weak Defence of Secrecy –

   • Protecting candidates’ reputations.

   • Avoiding political pressures.
     But other democracies like the UK (Judicial Appointments Commission) and South Africa (Judicial Service Commission) show transparency can coexist with fairness.

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Why It Matters

Judges appointed today will decide India’s most critical constitutional issues:

• Civil liberties.

• Executive accountability.

• Centre-State federal balance.

If people are told nothing beyond “appointment approved,” the judiciary’s legitimacy withers.

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Way Forward: Collegium Reform

• Structured Transparency – Publish clear selection criteria and limited but meaningful reasons.

• Institutional Reform – Consider a Judicial Appointments Commission model with safeguards.

• Balance Reputation with Openness – Disclosure need not mean defamation; careful wording can mitigate harm.

• Embrace the Culture of Justification – Judiciary must hold itself to the same standards it expects from others.

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UPSC Relevance

Prelims

• Second Judges Case (1993), Third Judges Case (1998).

• Composition and powers of Collegium.

GS Paper II (Polity & Governance)

• Separation of powers.

• Judicial accountability vs. judicial independence.

• Collegium vs. NJAC debate.

GS Paper IV (Ethics)

• Transparency and accountability in institutions.

• Ethical justification of public power.

Essay Paper

• “Transparency is the foundation of legitimacy in democracy.”

• “Judicial independence and accountability: complements, not contradictions.”

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Conclusion

The Collegium must accept reform. Secrecy in appointments undermines its moral authority. Far from weakening judicial independence, transparency will anchor autonomy in public trust. As Justice Mureinik’s principle reminds us: legitimacy rests not on fear or secrecy, but on the cogency of reasons.