Nation deserves explanations, not silence from Collegium
In the heart of India's legal system, questions of transparency and fairness have been raised regarding the process of judicial appointments and transfers. The recent controversy surrounding the elevation of Justice Vipul Pancholi to the Supreme Court has sparked a nationwide debate.
Justice Benjamin Nathan Cardozo's words from his dissent in Jones v. SEC echo in this debate: "Wrongs must be dragged to light and pilloried. It is time for the Collegium to lift the veil." The Collegium, a body responsible for recommending judicial appointments in India, operates in an "absolutely opaque and inaccessible" manner, according to critics.
The elevation of Justice Pancholi, who stands 57th in the all-India seniority list, over senior judges, has raised eyebrows. No reasons were offered for this decision, adding to the mystery surrounding the process. Transfers of High Court judges, including Justice Pancholi's move from Gujarat to Patna in 2023, are also shrouded in secrecy.
The independence of the judiciary, a cornerstone of democratic societies, is at stake. The Supreme Court has expressed concern about the government "picking and choosing" among Collegium recommendations, which, it warns, imperils the independence of the judiciary.
Transparency is not a luxury but a constitutional duty. The United Kingdom, for instance, has a Judicial Appointments Commission that publicly advertises vacancies, lays down criteria, interviews candidates, and publishes its reasons. In the United States, the process of judicial appointments is political but transparent, with nominees facing open hearings before the Senate.
The Collegium must record the rationale for transfers, such as administrative necessity, regional balance, or conflict of interest. It should also publish not only its recommendations but also the reasons for them. Under Chief Justice DY Chandrachud, some effort was made to mention diversity, regional balance, or merit-cum-seniority in Collegium resolutions, but this practice has now been abandoned.
Retired judges, senior advocates, and many in the legal fraternity have pointed out that delays in the Collegium's decision-making process can effectively end a judge's chances of elevation to the Supreme Court. Such delays are not neutral - they are punitive by effect, if not by intent.
Justice BV Nagarathna disagreed with the recommendation to elevate Justice Pancholi to the Supreme Court. Her dissenting voice underscores the need for a more transparent and fair system. The Collegium's proceedings must be open to scrutiny to ensure that appointments and transfers are made on merit and seniority, rather than behind closed doors.
High Courts are treated as though they are subordinate offices, and their judges are shuffled about. This lack of transparency and respect for seniority undermines the integrity of the judiciary and the faith of citizens that judges are appointed, transferred, and elevated with fairness. It is time for the Collegium to lift the veil and bring light to its proceedings.
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