Judge Bhuyan questions SC collegium’s opacity
At the launch of a Judicial Transparency Index report, a sitting Supreme Court judge observed that Collegium deliberations on the elevation and transfer of judges remain largely confidential, and that recent Collegium resolutions have not disclosed reasons for their decisions.
The judge argued that withholding reasons is unfair to judges who have performed well and can allow individuals unsuited for judicial office to be elevated without adequate scrutiny.
The judge stated that citizens have a right to know how deliberations on judicial elevations and transfers are conducted.
The report cited — the Judicial Transparency Index, produced under the JALDI (Justice, Access and Lowering Delays in India) initiative — is described as the first systematic study assessing information-disclosure practices across the Supreme Court and High Courts, and found varying levels of transparency across India's higher judiciary.
The Collegium System — Constitutional and Judicial Basis
The word "Collegium" does not appear anywhere in the Constitution. It is a judicially evolved mechanism for appointing and transferring judges of the Supreme Court and High Courts, built through interpretation of Articles 124 and 217 across three landmark cases collectively called the "Judges Cases."
Key Details
- Article 124(2): Supreme Court judges are appointed by the President "after consultation" with such judges of the Supreme Court and High Courts as the President deems necessary
- Article 217(1): High Court judges are similarly appointed by the President after consultation with the Chief Justice of India, the Governor, and (for other judges) the Chief Justice of the High Court concerned
- First Judges Case (S.P. Gupta v. Union of India, 1981) held that "consultation" did not mean "concurrence," giving the executive primacy
- Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993) overruled this, holding that "consultation" effectively means concurrence, giving the Chief Justice of India (advised by senior colleagues) primacy — this created the Collegium
- Third Judges Case (In re Presidential Reference, 1998), decided under Article 143 on a Presidential reference, expanded the Supreme Court Collegium from the CJI plus two senior judges to the CJI plus four senior-most judges
The Collegium's current opacity is a direct consequence of a judicially created process that has no explicit constitutional text or statutory procedure governing disclosure — the transparency concerns raised stem from this structural gap.
National Judicial Appointments Commission (NJAC) and Its Invalidation
Parliament attempted to replace the Collegium system with a broader body through the 99th Constitutional Amendment Act, 2014, and the accompanying NJAC Act, 2014. The NJAC would have included the CJI, two senior-most Supreme Court judges, the Union Law Minister, and two "eminent persons" selected by a panel including the Leader of the Opposition.
Key Details
- Struck down in Supreme Court Advocates-on-Record Association v. Union of India (2015) by a 4:1 majority of a five-judge Constitution Bench
- The Court held that including the executive (Law Minister) and non-judicial "eminent persons" in appointments compromised judicial independence, a part of the Constitution's basic structure
- The judgment restored the pre-existing Collegium system in full
- A follow-up "Memorandum of Procedure" reform process (to formalise Collegium criteria and transparency) has remained under discussion between the judiciary and the government without being finalised
The NJAC episode shows that attempts to reform appointment transparency through legislation have failed judicial review, leaving voluntary self-disclosure by the Collegium — the very practice now criticised as inadequate — as the only transparency mechanism.
RTI Applicability to the CJI's Office and the 2017 Disclosure Resolution
In Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal (2019), a five-judge Constitution Bench held that the Office of the Chief Justice of India is a "public authority" under Section 2(h) of the Right to Information Act, 2005, and is therefore subject to RTI requests, including on matters of judicial appointments — though subject to a balancing test against privacy and confidentiality.
Key Details
- Decided 13 November 2019, upholding a Delhi High Court ruling
- Separately, the Supreme Court Collegium (under then-CJI Dipak Misra) had already decided in October 2017 to publish its resolutions on judicial appointments, elevations, and transfers on the Supreme Court website
- Subsequent studies of resolutions published between 2017 and 2019 found that most continued to omit substantive reasons, limiting the practical transparency gain
- Illustrative structural example: Collegium recommendations that are reiterated by the Collegium can remain pending with the government for extended periods without formal disclosure of the reasons for delay (as in the case of senior advocate Saurabh Kirpal's stalled elevation)
The judge's remarks build directly on this unresolved gap — RTI and the 2017 resolution created a formal channel for disclosure, but the Collegium has continued to issue resolutions without reasons, which is the specific opacity now flagged.
- Second Judges Case: 1993 — established Collegium primacy over executive in appointments
- Third Judges Case: 1998 — expanded SC Collegium to CJI + four senior-most judges, decided under Article 143
- 99th Amendment/NJAC Act, 2014 — struck down 2015 by 4:1 majority in SCAORA v. Union of India
- CPIO, SC v. Subhash Chandra Agarwal — decided 13 November 2019; CJI's office held to be a "public authority" under RTI Act, 2005
- Supreme Court Collegium began publishing resolutions on its website: October 2017
- Constitutional provisions: Article 124(2) — Supreme Court judge appointments; Article 217 — High Court judge appointments