Before The Times of India (TOI) broke the story, a series of crucial developments had already unfolded. By March 15, Chief Justice of Delhi High Court (CJ, Delhi HC) Justice D.K. Upadhyaya already had instructions from (CJI) Justice Sanjiv Khanna on what other details they needed. The following is established on the basis of Justice Upadhyaya’s report:

On March 16, Justice Upadhyaya met the CJI and reported the happenings reported to him. On March 17, Justice Upadhyaya met Justice Yashwant Varma and showed him the photos and videos of the purported cash, at which point Justice Varma expressed concerns that he was being targeted in a conspiracy.

On the morning of March 20, Justice Upadhyaya sent the images and videos to Justice Khanna. That same evening, Justice Upadhyaya was notified about the proposal to repatriate Justice Varma back to the Allahabad High Court, his parent High Court. Justice Upadhyaya endorsed the proposal, stating that it was in the interests of justice. It was only after these internal developments that the TOI publicly reported the story.

The Supreme Court on March 22 announced a three-member Committee comprising of judges from various High Courts that would conduct an inquiry into this incident. On March 24, the Collegium’s resolution to repatriate Justice Varma to Allahabad High Court was published.

This article is not to address judicial corruption, a well-documented issue with established theories on solutions(see here, here and here)—awaiting only implementation. Instead, it highlights how the outrage over the Justice Yashwant Varma fiasco is part of an ongoing erosion of judicial credibility, a concern rooted in legitimate issues. From appointing openly communal individuals as judges to failing to act against sitting judges who make communal remarks, the judiciary’s credibility and public trust have been in steady decline. Yet, the higher judiciary appears to be missing opportunities to restore it.

This article argues that the collegium’s resolutions must be more transparent and informative and striving for this transparency would be a crucial first step in rebuilding trust in the higher judiciary.

The issue: Context

The Collegium is one of the most powerful bodies in India today. Despite having no constitutional mention or statutory status, its power is such that it decides who gets to be a judge in India’s High Courts and the Supreme Court. The Collegium is not answerable to the executive or the legislature— a feature that it draws from one of the core principles of the Indian Constitution—independence of the judiciary. It consists of the Chief Justice of the country and four of the senior-most judges of the Supreme Court—a system in place since 1998.

The NJAC challenge and calls for transparency

In 2014, the NDA government enacted the National Judicial Appointments Commission Act, 2014 to replace the collegium system. A 5-judge bench of the Supreme Court in Supreme Court Advocates-On-Record Association & Anr. vs. Union of India ([2015] 13 SCR 1) declared the NJAC as unconstitutional with one judge—Justice Chelameswar dissenting.  Both the majority and dissenting opinions expressed the need for greater transparency in the process of judicial appointments.

After the judgement, and once he became a senior judge qualified to be in the collegium, it was reported that Justice Chelameswar refused to attend the collegium meetings since it was an opaque process. In 2017, to resolve the deadlock, the Collegium started to make public its resolutions during the tenure of CJI (as he was then) Dipak Misra.

While that process enabled the resolutions to be published, in December 2022, in the case of Anjali Bhardwaj v. CPIO, Supreme Court of India, (RTI Cell), (2022 SCC OnLine SC 1698), the Supreme Court held that held that unless any Collegium discussion culminates into a final decision, the discussion shall not be disclosed to public.

A study in 2022 stated that the collegium systematically failed to disclose critical information essential to an enhanced understanding of its functioning. The study stated that an overwhelming majority of its decisions are not reasoned and that the resolutions fail to provide a meaningful understanding of the considerations, based on which candidates are selected or rejected.

Except for a brief, considerable change during CJI (as he was then) DY Chandrachud’s tenure, the study’s findings hold true.

Collegium communications: A formality within a formality

Currently, the Supreme Court of India publishes Collegium resolutions on its website, offering a glimpse into its decision-making process, including, transfers and appointments of judges to higher judiciary. However, these resolutions often feel like a mere formality—followed more out of precedent than a genuine commitment to transparency. Why?

On March 24, the Supreme Court collegium’s statement was released on the repatriation of Justice Yashwant Varma to Allahabad High Court. It reads as follows:

“The Supreme Court Collegium in its meetings held on March 20 and 24, 2025 has recommended repatriation of Mr. Justice Yashwant Varma, Judge, High Court of Delhi, to the High Court of Judicature at Allahabad.”

If we did not have the Times of India story and had this resolution come out without the nation ever having the knowledge of the alleged cash, the public would have not known what had happened.

More broadly, when judges are transferred, the reasons are often unclear. Whether it is due to seniority, the interests of justice, or a particular skill being required elsewhere, there is little transparency in the decision-making process.

For instance, let us take the example of Justice Arindam Sinha on whose transfer the resolution was notified on the same day Justice Yashwant Varma’s transfer was notified, with similar resolution.

In May 2021, while serving as a judge at the Calcutta High Court, Justice Arindam Sinha strongly objected to the division bench led by Acting Chief Justice Rajesh Bindal treating a transfer petition filed by the Central Bureau of Investigation in the Narada scam case as a writ petition. He had also opposed the bench’s decision to stay the bail granted to four Trinamool Congress (TMC) leaders and its move to constitute a larger bench due to divergent opinions between the two judges. Later in September 2021 he was transferred to the Orissa High Court, and now he has been transferred again. We do not know why, in both cases.

Judicial transfers are a natural process, but what prompted this judge’s transfer to that particular court remains unknown. Justice Arindam Sinha’s transfers could well be routine, day-to-day adjustments, but the point to note here is that in the absence of official reasoning, the public is left to speculate.

If someone wants to rule out a few possibilities, they will likely have to track Justice Sinha’s seniority and see whether his transfer aligns with the seniority list. However, the Supreme Court is not bound to follow strict seniority in judicial transfers, and decisions can be made based on other considerations such as administrative requirements, institutional interests, or other factors.

A choice exercised at will

This nonchalant formality is not the case with all collegium resolutions. Some are more detailed; some are just a press note.

For example, in the resolution dated March 6, 2025 to appoint Justice Joymalya Bagchi as the judge of the Supreme Court, the SC has put out a two-page resolution. The resolution talks about the factors that have been taken into consideration, while appointing Justice Bagchi who stands at No.11 in the All-India Seniority list of judges, like the fact that Calcutta is represented by only one judge in the SC.

Has it always been like this?

Yes, but also no. During Chief Justice of India (as he was then) Justice DY Chandrachud’s tenure as CJI [9 November 2022 to 10 November 2024], the collegium resolutions were way more detailed.

For example, take the last collegium resolution during the tenure of Justice Chandrachud as CJI—a resolution regarding appointment of advocates as judges of the Bombay High Court. The resolution had details on consultation with judges over the candidacy, government inputs, professional experience and credentials, experience of those who were appointed. This was not some ideal-comprehensive format but was surely a different way than it had been done before.

However, as soon as Justice Chandrachud retired, the collegium resolutions more or less went back to being as they were, simple communiques of a very powerful body that, to this day answers effectively to no one. We do not know why. No one asked and no one cared to clarify.

Why is it necessary that collegium process is more transparently communicated?

Judicial independence stands as a fundamental pillar of any robust democracy, safeguarding the rule of law and ensuring that justice is administered impartially. Given the collegium system’s origin, the procedures and accountability mechanisms of the Collegium are not as firmly established as those of bodies with a clear constitutional or legislative basis, making it inherently susceptible to questions regarding legitimacy and openness.

The lack of transparency was one of the primary reasons for which Justice Chelameswar authored his powerful dissent in the NJAC case. Due to the Justice Varma incident, there is a renewed push by the ruling establishment for judicial reforms and a relook at the NJAC (See here and here).

The release of more detailed Collegium resolutions holds significant potential to address the criticisms levelled against the system’s opacity. Including the specific reasons for recommending a particular candidate, such as their demonstrated expertise in a specific area of law, notable judgments they have delivered, or their contributions to legal scholarship, would provide a much clearer understanding of the basis upon which the Collegium makes its selections. Explicitly stating the criteria that the Collegium considered for each appointment, going beyond generic terms like “merit and integrity,” would also enhance transparency and allow for public evaluation of whether these criteria are applied consistently across different appointments. While a verbatim transcript of the Collegium’s deliberations might indeed compromise the confidentiality necessary for frank discussions, providing a summary of the key perspectives considered and the rationale behind the final decision could offer valuable insights into the decision-making process. Furthermore, explaining the reasons for not recommending certain candidates (without necessarily disclosing their names if privacy is a concern) could help address concerns about fairness and potential biases within the selection process. In the context of judicial transfers, providing specific reasons beyond the vague “better administration of justice” would help dispel speculation and potential accusations of transfers being punitive in nature.

By moving beyond simply announcing decisions to providing clear explanations for the rationale behind them, more detailed resolutions would foster greater public understanding and potentially increase trust in the judicial appointment process. The fact that collegium resolutions were often detailed during Justice Chandrachud’s tenure suggests that the Collegium possesses the capacity to provide more comprehensive information and might be amenable to revisiting this approach. However, it should not come from a CJI’s prerogative since it can be discontinued by the next one. It must come from a set of rules which the Court as a whole writes for itself and follows.

For example, some have commended the CJI’s decision to put in public some material (albeit redacted to an extent) related to Justice Yashwant Varma’s case. However, the important point here would be to remember that instances of corruption have continued to persist and will do so, in the future. In that case, while commending the act of being transparent, the Supreme Court should also be called upon to arrive at a set procedure in these kinds of cases and make it transparent, if and when they arise in future.

Transparency inherently acts as a form of accountability, incentivising the Collegium to be more meticulous and reasoned in its decision-making process, knowing that their rationale will be made public and subject to scrutiny. Given that the judiciary often emphasises the importance of transparency for other institutions, a perceived lack of it within their own appointment process can be viewed as inconsistent, potentially undermining their moral authority in advocating for openness elsewhere. Public perception of fairness and integrity is paramount for the judiciary’s effectiveness.

Writing better collegium resolutions will not solve the issues with Collegium. They can only be solved by establishing an independent and transparent appointing body which is answerable to the people. While that might take time, this is within the powers of the Collegium and it should not let go off an opportunity to show that it too, can reform itself.

Why should they change now?

Simply put, the changes have to be made to make an effort at rebuilding the eroding public trust in the judiciary. Yes, people are scared of courts. No one wants a contempt order targeting them. However, is fear the tool with which the higher judiciary can sustain its stature in the Indian political scheme? Is it sustainable? It is not.

Sooner or later (now that it is already too late, therefore soon), someone—like George Carlin once did—will stand up and say, “They’ve got the judges in their back pockets,” referring to how the closed door appointment systems and judicial corruption serve the rich and powerful. And when that happens, it would be too late to initiate a contempt proceeding against whoever says it.

Conclusion

While more detailed Collegium resolutions represent a significant step forward, relying solely on them might not be sufficient to achieve full transparency within the system. Even with increased detail, resolutions may not fully capture the nuances of the discussions and considerations within the Collegium or any informal consultations that might occur. The interpretation of broad criteria such as “merit” and “integrity” can still remain somewhat subjective, even if elaborated upon in the resolutions. The possibility of the Collegium tailoring the reasons provided in the resolutions to rationalize decisions already made cannot be entirely discounted. Furthermore, resolutions primarily focus on the final recommendations and might not provide insights into the initial stages of identifying potential candidates or the role played by High Court Collegiums in the overall process.

To further enhance accountability and openness, several other measures could be considered. Establishing clearer and more objective criteria for evaluating candidates, and making these criteria publicly available, would be a crucial step.

The judiciary has long defended itself from the executive wanting to control it. People of India supported the judiciary after they saw how it supported them from its decisions on Right to Education to its exceptional integrity in handling high profile matters involving influential politicians. It is this support that has given the higher judiciary its glorious decades. If the institution ignores the clear warning signs and resists reform, it risks losing its independence to an encroaching executive.

(The author is part of the legal research team of the organisation)

Related:

A Judiciary Made to Measure

Move towards Judicial transparency, Orissa HC evaluates own performance, lists challenges

The post Potential of reasoned Collegium resolutions as a starting point for transparency in the Indian higher judiciary appeared first on SabrangIndia.

Dissents are not rare but powerful ones are. Justice Fazl Ali’s dissent in AK Gopalan vs. State of Madras stating that the ‘procedure established by law’ in Article 21 is due process and not any law passed by the government, differing from the majority view, is the prevailing position of law today but then, it was a lone dissent in a newly Independent India facing not just a core constitutional problem but the authoritarian moves by the state.^[1] This is just an anecdotal example to highlight how important dissenting judgements are, especially for future generations to bank upon.

The last decade has seen the Supreme Court deliver one landmark judgement after another, like the ones in cases of Supreme Court AOR Association vs. Union of India(NJAC Judgement), Navtej Singh Johar vs. Union of India (Decriminalising parts of Section 377), Justice KS Puttaswamy vs. Union of India (Privacy as a fundamental right and upholding Aadhar), Indian Young Lawyers Association vs. State of Kerala(the Sabarimala Case), Shayara Bano vs Union of India(Declaring Instant Triple Talaq Unconstitutional) etc.^[2]

In all these cases, except in the case of Navtej Singh Johar, each had a strong dissenting opinion. And those dissenting verdicts form a considerable part of academic discourse today-whether it be Justice Indu Malhotra’s dissent in the Sabarimala Case or dissent in the Puttaswamy’s case by Justice Chandrachud (now CJI).

In the light of recent discussions on the collegium system of the appointment of judges and the government vocal-near aggressive stance on this system, it is important to revisit the dissent by Justice Chelameswar in the case of the proposed NJAC to understand the legal perspective that supports the NJAC act and the related constitutional amendment.

The legal regime under the NJAC

There are two parts to the NJAC legal regime. One is the Constitutional amendment to allow for the NJAC to be the recommending entity for the appointment of judges, instead of the CJI led collegium.^[3] And the second part is the NJAC Act which details out the procedures to be followed by the NJAC.^[4]

The constitutional amendment removed the provision which mandated that the appointment of judges be made in consultation with the judges of the Supreme Court and added that the appointment be based on the recommendations of the NJAC.^[5] The amendment also inserted three more articles:

• 124A-constituting the NJAC including 4 ex officio members i.e. CJI, two other senior most judges of the Supreme Court, Law Minister and two eminent person of which one should be SC ST, OBC or Women. The two eminent members be nominated by the committee consisting of Prime Minister (PM), Leader of Opposition (LOP) and the Chief Justice of India (CJI). The  act or proceedings of the National Judicial Appointments Commission shall not be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission;

• 124B-Declaring the duties of the NJAC as recommending names for appointment of judges of the Supreme Court and the High Courts and the transfer of the judges from one HC to another and ensure that the person recommended is of ability and integrity;

• 124C-Giving Parliament the power to regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it. Other amendments were made removing the provisions where consultation with the judiciary was required and replaced the Judiciary’s positions with the NJAC.

Effectively, the appointments and transfers in constitutional courts, which used to happen exclusively in consultation with the judiciary, would happen on recommendation of the NJAC after the amendment. However, the Supreme Court in a 4:1 majority verdict[6] struck down the 99th Constitutional Amendment.^[7] The second part of the NJAC regime is the NJAC act. NJAC Act lays down the procedure for the appointment of the judges and states that the NJAC shall not pass a recommendation if any two members object to the name.^[8] This again is not specifically stated for transfer and the act stated that the commission would specify regulations for the purpose of transfer.

To summarise the essence of the NJAC regime, Parliament amended the constitution to empower itself to make regulations on appointment of judges to constitutional courts. It formulated a commission which would recommend the appointment of judges to the president. To make it balanced, and not only controlled by the executive, the commission would consist of three members from the apex court, one member from the government- law minister, and two other ‘eminent members’ – who would be nominated by a high-powered committee with the prime minister (PM), leader of the opposition (LOP) and chief justice of India (CJI) as members. The committee also had a check on its functioning: if two members oppose a recommendation, the recommendation shall not or cannot be passed. Finally, the recommendation of the NJAC shall or cannot be questioned just because there is a vacancy or a defect in the constitution of the commission.

The challenge was, in effect, that this act and the amendment violated the basic structure of the constitution by breaching the principle of the judiciary being separate from any executive influence or interference.

Dissent of Justice Chelameswar

Simply put, the petitioners’ arguments were that independence of Judiciary is a basic feature of the Indian Constitution and the primacy of the CJI’s opinion i.e., Collegium opinion is an essential element of such a feature: according the judgements of SC that are now famously known as Second and Third Judges cases. These cases can be said to have created the collegium system. More about these cases can be read here. The amendment which dilutes the primacy of the CJI led collegium’s opinion, according to the petitioners, violated the essential element of the basic feature, thereby violating the basic structure of the constitution. And violation of basic structure of the Constitution was declared to be unconstitutional in the Keshavananda Bharati vs. Union of India, 1973.

Justice Chelameswar’s dissent (the Dissent) revolves around two primary questions he chose to answer. One question is whether the mechanism within the Constitution instituted by the Constituent Assembly i.e., Article 124 prior to the amendment is the only way to secure the independence of the judiciary or not. The second one flows from a probable answer to the first poser i.e., if there are alternatives, does the NJAC amendment transgress boundaries of constituent power.

The dissent relies on Dr. BR Ambedkar’s opposition to the various models on appointing judges to arrive at a conclusion that neither Parliament nor the Executive are to be given the sole power to decide the judges’ appointment, the first for political reasons and second for the obvious reason; the Executive is literally party to far too many disputes before the courts. It also relies on the fact that the Constituent Assembly rejected the idea of the appointment power being totally vested with the judiciary. ^[9]

Para 66 of the Dissent stated “The system of Collegium the product of an interpretative gloss on the text of Articles 124 and 217 undertaken in the Second and Third Judges case may or may not be the best to establish and nurture an independent and efficient judiciary. There are seriously competing views expressed by eminent people, both on the jurisprudential soundness of the judgments and the manner in which the Collegium system operated in the last two decades.”

The Dissent also discusses the question whether Parliament can come up with a different procedure for the appointment of judges, replacing what has already been decided by the Supreme Court in the second and Third judges’ case. 

The Dissent also differentiated between the basic features and basic structure of the Constitution and holding that the primacy of the opinion of the CJI does not form the basic feature of the Constitution, negating the petitioner’s arguments that it does. And consequently, the Dissent states that the amendment, therefore, does not affect a basic feature, further negating the petitioner’s arguments.^[10] The Dissent instead states that the basic feature is actually “non- investiture of absolute power in the President (Executive) to choose and appoint judges of CONSTITUTIONAL COURTS.” And then it concludes that this basic feature is not abrogated by the amendment. Since primacy of the Collegium’s opinion is not a basic feature, the amendment does not violate the basic structure, the Dissent concluded.

And with respect to two points, one about government pushing their candidate for appointment and the second one about the inclusion of eminent people, interfering with the Judiciary the Dissent engaged in them, but in a way that is unclear. The Dissent simply states that since the executive is only represented by the law minister i.e., ⅙ (one-sixth) of the entire committee, the Judiciary if it wants to stop a recommendation, it can do so with its own members. There is a provision that if two judicial members object to a recommendation, it would not pass. Moreover, the Dissent also states that the presence of the executive – which has so much an excess of power in the area of defence, fiscal policies, protection of life and liberty – will have much to contribute and to exclude them is a trait that is absent in democracies. The dissent, as stated before, relies on constituent assembly discussions saying that the framers did not put their exclusive trust in either the CJI just like they did not put exclusive trust in the executive.

The unclear part (in Justice Chelmeswar’s dissent) is that no justification has been given as to how the inclusion of executive – which also happens to be a party to the multiple disputes that go on before the courts, does not result in a clear problem of conflict of interest. While it emphasises on what the presence of the executive brings to the table, the same data and expertise could be brought to the notice of the appointing commission without the executive being explicitly present within it.

An issue in plain sight that was left unengaged with in the Dissent was the polyvocal nature of the Supreme Court- especially the collegium – and the supposedly more heterogeneous nature of the executive. Though it was not explicitly so framed by the petitioners at all, the Dissent explicitly states that as long as two judicial members unite and do not agree to a recommendation, the government cannot push a candidate forward. If this situation were to be imagined indeed, then there are multiple scenarios that could have the government push its candidate. Given the polyvocal nature of the Court (i.e., the trait where multiple senior judges of the apex court do not have the same opinion about a recommendation), if the three judges within the NJAC are not on the same page, which is not just normal, but frequent, the executive could get their way.

Another point raised by the petitioners that the Dissent negates is this – the petitioners’ argument that the placement of two eminent personalities could be misused since there is a clear possibility that both the parties i.e. The PM and LOP could group up and nominate their own people as the ‘eminent personalities’ and that this could totally shift the balance of power in NJAC. The Dissent stated that “possibility of abuse of power conferred by the Constitution is no ground for denying the authority to confer such power.”^[11]  However, the tenure of an eminent member in the proposed NJAC is three years and if this collusion happens once, the eminent member will hold immense power to influence the decisions of the commission. The dissent does not deal with this possibility at all.

A new and important point the Dissent brings out is how Transparency is a vital feature in constitutional governance and rationality- which must govern every sphere of state action. This is in response to how collegium proceedings are opaque etc. However, it does not clarify as to how presence to two eminent members who are handpicked by a high powered committee are the harbingers of much needed transparency, and how intense such transparency would be, for the interference of some external member to be so justified.

Conclusion

The above understanding is not to undermine the reasoning that was given in the Dissent or to outright-ly support the collegium system as it exists. The points about transparency raised in the Dissent are pertinent and different measures of transparency would have to be included for the collegium system to be more according to the ideals of the constitution.

However, it is submitted that, with respect that the Dissent, while providing a powerful opposition to the continuance of collegium system, has not adequately clarified how the proposed NJAC model is constitutionally sound.

The post How the dissent does not quite deal with insulation of judiciary from executive control: NJAC case appeared first on SabrangIndia.