Collegium's Actions Raise Doubts On Its Claim Of Protecting Judicial Independence

The recent events show that the Supreme Court Collegium headed by Chief Justice of India B.R. Gavai has not covered itself in glory. Questions abound over the proposal to elevate Justice Vipul Pancholi to the Supreme Court, particularly in light of reports that Justice B.V. Nagarathna expressed dissent on the Collegium proposal.

As per reports, Justice Nagarathna expressed that Justice Pancholi's appointment would be “counter-productive” to justice. In terms of seniority, Justice Pancholi is in line to be the Chief Justice of India from October 2031 to May 2033. She apparently questioned why Justice Pancholi, who was at Rank no.57 in the All India Seniority, was preferred over other meritorious judges, especially when the Gujarat High Court already has a representation of two judges in the Supreme Court. It was also flagged that the reasons for Justice Pancholi's transfer from Gujarat to Patna HC in 2023 must be deliberated upon, since it was not seemingly a routine one.

However, the Supreme Court Collegium's official statement did not record that Justice Nagarathna dissented; nor was the dissent published, despite her demand. All this information has come to the public domain through certain media reports based on anonymous sources, which the Supreme Court has not denied, despite the raging public debate. Pertinently, Justice Abhay S Oka, former Supreme Court Judge, opined that the demand for public disclosure of Justice Nagarathna's dissent is justified.

Earlier, the Collegium used to give some sort of explanation for preferring a candidate. However inadequate, vague or generic those explanations might have been, they were still an acknowledgement of the basic fact that the judiciary is accountable and answerable to the public and that the citizens have a right to know. For example, when Justice PK Mishra was recommended bypassing seniority, the collegium cited representation for the State of Chhattisgarh and his integrity. When Justice Joymalya Bagchi was recommended for elevation, the Collegium stated that there has been no Chief Justice of India from the Calcutta High Court since 2013, which they sought to address by placing Justice Bagchi in the line of succession to be the CJI in 2031. One may agree or disagree with the reasoning or its sufficiency, but at least there was some explanation.

But now, the Collegium has altogether dispensed with the practice of explaining its decision. Only a bare statement is published, without any explanation. The Collegium does not now bother to even keep up a semblance of being accountable.  This attitude, with due respect, borders on judicial hubris, as if the Collegium is telling the people, “we will do whatever we want because we can, you accept it without any questions.”

Questions also arise after it has emerged that the Collegium has recommended CJI BR Gavai's nephew for elevation to the Bombay High Court last week. Coincidentally, the Bombay HC Chief Justice, who recommended the elevation, was recommended for elevation to the Supreme Court a week later.

Interestingly, the recommendations were cleared swiftly by the Government, which has the notoriety of selectively keeping several other recommendations in cold storage for years.

One cannot be faulted for gathering an impression that the Collegium appeases the Executive by selecting some candidates which the latter prefers, and in turn gets to select some of their own people. This sort of 'give and take' arrangement with the Executive, coupled with the abject opacity under which it functions, makes one wonder whether the Collegium system continues to serve its foundational purpose.

To be sure, the concern raised here is not with respect to the merit or the integrity of any candidate, but about the opacity of the process and the negative public perception it generates. The question here is, whether a candidate proposed by the Executive will be able to take an independent stand when a matter of grave constitutional importance or fundamental rights' violation comes up. The issue is more of public trust, or at least the perception of it,  than individual merit.

Former Supreme Court Judge MB Lokur, who himself was a member of the Collegium, recently expressed in his essay in the book “The [In]Complete Justice?Supreme Court at 75” : “There is, now, increasing interference by the Executive in the matter of appointment of judges.” He opined that the recent events suggested that the “trump cards are held by the Government of India, which is gradually eroding the independence of judiciary.” “The expectation is that trump cards should be with the Supreme Court Collegium. But, they are not,” he added.

The only justification for the Collegium system, despite the opacity and subjectivity inherent in it, was that it shields the judiciary from the executive's interference. If that purpose isn't served, why should citizens suffer this secret club?

It is also notable that the Executive functionaries are not attacking the Collegium system anymore, as they used to do around two to three years ago, when the Supreme Court, on its judicial side, was taking up the issue of delay in judicial appointments and had even gone to the extent of publicising the IB's flimsy objections to some candidates. The Supreme Court has also, in turn, stopped hearing the petitions on the delay in appointments, after the matter was mysteriously deleted from Justice SK Kaul's list in November 2023. Even though two meritorious advocates recently withdrew their consent for judgeship after the Centre kept their recommendations pending for over two years, the Supreme Court has not taken up the issue. Recently, when these petitions were mentioned for urgent listing, CJI Gavai said that the Court has been pursuing the matter of judicial appointments on the administrative side. No one really knows how effective those administrative pursuits are or what the outcomes are.

The signal which seems to be emerging is that both wings are happy with the present status quo arrangement. However, this bonhomie between the judiciary and the executive does not augur well for democracy and the Constitution.

The judiciary has long defended the Collegium on the promise that it was necessary to uphold the independence of judiciary. That promise is fraying, if the Collegium cannot insulate judicial appointments from political influence. Striking down the NJAC, the Court insisted that judicial primacy in appointments was non-negotiable. However, judicial primacy cannot be allowed to become an arbitrary privilege.

If the Collegium cannot candidly disclose the reasons for its decisions, cannot acknowledge dissent within its own ranks, and cannot convincingly prove that it is immune from Executive influence, then its claim to legitimacy collapses.