Constitutional democracies are sustained not only by written laws but also by what the South African professor of law, Etienne Mureinik, first described as a “culture of justification”. That is, the idea that every exercise of public power must be explained and defended. As Mureinik put it, “The leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.”
Judges in India have routinely invoked this principle to demand accountability from the state. But with reports surfacing in the media of the dissent by Justice B.V. Nagarathna of the Supreme Court of India, on the Collegium’s recommendation to elevate Justice Vipul M. Pancholi to the Court, it appears that this culture of justification ends at the Collegium’s door. When it comes to the Court selecting its own members, the public seemingly have no right to know.
An indictment of the system
A dissent of this kind ordinarily would represent a moment of reckoning. But the Collegium and its almost total opacity has meant that the opposition has proven not so much a failure as a futile exercise. The resolution uploaded on the Court’s website, displaying the recommendation, suggests unanimity. It makes no mention of dissent. We only learnt of Justice Nagarathna’s objection through reports in the media. The note that she wrote remains hidden, but we are told that her reservations were “grave.” It is unclear whether the dissent was even shared with the Union government, which, within 48 hours of the recommendation, went ahead and notified the appointment.
This gulf, between what we know happened and what we are permitted to know, epitomises the flaws inherent in the system governing how we appoint members to our courts. One of India’s senior-most judges may have believed there were compelling reasons why the candidate’s elevation should not have gone through, yet both her reasoning and the majority’s response remain unknown. No doubt the dissent might only concern a single appointment. It is possible that the other members in the Collegium had overwhelming reasons to support the proposal. But the fact that the public is told nothing at all is itself an indictment of the system — its lack of transparency, its democratic deficit, and its refusal to explain itself to the people in whose name it acts.
The Collegium has been resistant to transparency from its inception. It is a product of judge-made law. Created in the “Second Judges Case” (1993) and entrenched in the “Third Judges Case” (1998), the system vests primacy in the five senior-most judges of the Supreme Court to appoint members of the higher judiciary. They deliberate in private, record decisions with minimal disclosure, and rarely explain their reasoning.
Beginning in 2017, the Collegium began publishing its resolutions. But these were skeletal at best and amounted to little more than formal announcements. For a short period in 2018, the Court uploaded fuller reasons for the Collegium’s choices and rejections. However, the experiment was short lived, with the explanation that disclosure might damage reputations.
Justice Nagarathna’s dissent reveals the cost of this retreat to secrecy. If even an objection from a serving Supreme Court judge is deemed too sensitive for the public, then we must ask whether the Collegium has not simply embraced opacity but crossed into outright rejection of accountability.
The weak defence
The defence of keeping its reasons confidential has always rested on two claims: that openness can harm the reputation of candidates who are not selected, and that it would expose the system to political pressures. On reasonable scrutiny, both claims collapse.
No doubt, marrying transparency with reputational fairness requires careful handling. But other constitutional democracies seem to manage it better than India does. Britain’s Judicial Appointments Commission, for instance, sets out its criteria openly and issues reports explaining how candidates were assessed. In South Africa, candidates for higher judicial office are interviewed by the Judicial Service Commission, and their suitability debated in public. Neither system is flawless, but both proceed from the recognition that legitimacy flows from openness. India, by contrast, persists in treating the Collegium as a private conclave. Even the existence of dissent reaches us only through leaks. If reputational harm is a genuine concern, the answer must lie in carefully structuring disclosure to mitigate it. Denying justification altogether cannot be the solution. And if political pressure is feared, then secrecy has hardly prevented it. The executive, after all, continues to delay and stonewall inconvenient Collegium recommendations. It can return a name for reconsideration or, on re-recommendation, simply keep the file pending, stopping short of issuing the presidential warrant of appointment.
The stakes here go to the heart of India’s democracy. Judges chosen today will shape the outcomes of India’s most urgent constitutional questions that range from issues concerning civil liberties to the limits of executive power and the division of authority between the Union and the States. When citizens are informed only that a judge has been elevated, without reasons, or when a dissent by a sitting Supreme Court judge is shrouded in secrecy, institutional legitimacy withers. We quite rightly expect our courts to insist on accountability from other branches of the state. But in doing so, can they claim immunity for themselves?
Justice Nagarathna’s dissent has not halted Justice Pancholi’s elevation. Indeed, it is possible that the other members of the Collegium had good reasons to support his appointment. What they were, we will never know. But the larger issue here extends beyond a single name. It concerns whether the Court is prepared to live by the very principle it seeks to impose on every other organ of the state: that every exercise of public power must be justified.
In many democracies, anxieties about unelected judges striking down laws are framed as a counter-majoritarian difficulty. How can a system be democratic if those not chosen by the people wield such authority? At first blush, the concern seems real. But it misstates what democracy truly is. Democracy is not simply majoritarian rule by numbers. Properly understood, it is something more: a partnership between citizens that secures rights and ensures that liberty and equality structure public life. Unelected judges play an essential role here, by interpreting the law and by protecting rights against majoritarian excesses.
It is for this reason that the Constitution vests extraordinary prerogative power in an unelected judiciary. Judges are meant to act as independent arbiters, to check and balance government, to protect fundamental liberties. In doing so, they do not undermine democracy but only fulfil its highest aspirations.
The Collegium must accept reform
However, for the judiciary to retain its standing, the process by which judges are appointed must itself meet the strictest standards of accountability. The Collegium has too often withdrawn into a culture of concealment over justification. Unless it embraces reform, it risks diminishing the very legitimacy on which its authority rests. Too many opportunities for change have been spurned in the past; every step forward has been followed by two steps back, with each retreat eroding the values of transparency and integrity on which democracy depends.
A judiciary that subjects itself to the same standards of openness it demands of others will not weaken its autonomy. On the contrary, it will anchor its independence more securely in the trust and the confidence of the people.
Suhrith Parthasarathy is an advocate practising in the Madras High Court
Published – September 04, 2025 12:16 am IST