An earlier piece has already set out why collegium resolutions need to be more reasoned and how they can serve as a starting point for greater transparency in the higher judiciary. That was written in the backdrop of an unusual incident — an alleged half-burnt cash pile found at a judge’s residential bungalow complex after a fire broke out on March 14, 2025, and the developments that followed. This piece, unfortunately, argues that collegium resolutions need to be uploaded in full; if there is a dissent that needs to be uploaded too. It is unfortunate because a dissent not being recorded is an issue that sets back whatever progress the collegium purportedly made until now.

Collegium Dissents and the Need for Transparency

When two judges of the collegium oppose a proposal for elevation or re‑elevation, it is customary — and it has also been laid down by the Supreme Court in the Judges’ Cases — that the Chief Justice should not press for that appointment. In the present matter, going by reports, since it was only Justice B.V. Nagarathna who dissented, the recommendation was proceeded with.

There is no inherent problem in a rule being followed. The debate about whether such a rule is unfair or unjustified is a separate question. But if a rule is being followed, there must be transparency in its making, its mechanisms, and its application. If the practice is that a 4:1 majority carries the day, then the workings of that practice must be clear: who formed the majority, who dissented, and what reasons were recorded for the dissent. There could be ten things which tell an observer of Indian polity as to why appointment of certain judge is driven by executive zeal rather than judicial independence. It is expected of the executive to push for its agenda, but it is the imperative of the judiciary to withstand these attempts and stand tall upholding fairness and integrity, consistently.

Without a minimum level of disclosure, the most important thing a collegium requires — support of the public — steadily erodes. Public confidence is built not by secrecy, but by showing that rules are real, consistently applied, and open to scrutiny. And moreover, unlike the executive which, despite being popular, maintains its dominance by use of force, propaganda—the judiciary’s strength comes from the trust of a billion people. Omissions or actions that could result in the erosion of this trust from the people is concerning for all those who look at judiciary with hope.

This is not to throw mud at Justice Pancholi or any other Supreme Court judge. Imagine if the dissent was on the basis that there is no women representation in the Supreme Court and Justice B.V. Nagarathna batted for it and therefore dissented an elevation of someone 57^th on the seniority list. That would not make such dissent any less important. The resolutions of the collegium and the necessity for it to function transparently and fairly is not about the individual judges that constitute it or the judges it appoints. The question of whether it would be fair to judges if such dissent notes are made public or not, or whether collegium should appear to be broken or not are immaterial in the face of immense public interest that runs with the principle of transparency to which collegium should not be an exception.

What is to be done then?

The larger question raised by this report is not simply about one appointment, but about the collegium itself. If dissents exist, why do we not have a consistent way of recording and publishing them? Why should the style and detail of collegium resolutions change with every Chief Justice?

There is a straightforward solution. The next seven Chief Justices of the Supreme Court are already part of the Court today, if the convention of seniority is followed. The Supreme Court can come out with a comprehensive format of the resolution, frame rules for the format and mechanism of Collegium resolutions and follow them. This regime can be supported by the existing judges of the Supreme Court along with the future Chief Justices. Once that format is agreed upon, it should be binding not only on the present collegium but also on the successive Chief Justices and collegiums who will assume office in the coming years. In effect, the institution would set rules for itself — rules that endure beyond the preferences of a single Chief Justice.

Such a mechanism would bring predictability and credibility. It would ensure that future resolutions, whether on appointments or transfers, follow a consistent template, and that dissents are neither invisible nor dependent on the inclination of the Chief Justice of the day. This is not outside the scope of the Supreme Court. It is entirely possible — and necessary — for them to agree on a self-binding practice that strengthens the collegium’s transparency and stability.

The call for a uniform, enduring format for collegium resolutions is not merely a procedural plea but a constitutional necessity. As Montesquieu warned in The Spirit of Laws, “power ought to be a check to power”; opacity in judicial appointments allows concentrated discretion to escape that check. Immanuel Kant’s categorical imperative would similarly demand that if transparency is a duty for one Chief Justice, it must be a duty for all — for justice is not episodic, it is systemic. The worth of an institution is measured by whether it pursues legitimacy or merely convenience. To neglect to record dissents is to betray the very spirit of law. The time has come, therefore, for the Supreme Court to rise above personalities and preferences and to bind itself in a framework of reasoned, transparent, and consistent resolutions. Anything less is an abdication of the Court’s moral authority to demand accountability from every other institution of the Republic.

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

Related:

Potential of reasoned Collegium resolutions as a starting point for transparency in the Indian higher judiciary

Collegium System is Law of the Land, Must Be Followed: Supreme Court to Centre

Is the Centre overreaching itself in returning Collegium recommendations, again?

The post A Proposal on Collegium Resolutions: Towards a single comprehensive format appeared first on SabrangIndia.

The warrant of his appointment as an additional judge was signed by the President of India. The said announcement was made by Union Law Minister Arjun Ram Meghwal on ‘X’ (formerly Twitter).

It is essential to note here that his name was first recommended by the collegium for judgeship in February 2021. His name was reiterated by the Supreme Court collegium to the Union government in February 2022. Pursuant to this, in November 2022, the Union government had raised “objections” against his appointment based on the fact that he had expressed his view on matters pending before the court on social media. The Union government had suggested a “reconsideration” of the recommendation.

Standing its ground, the collegium had, in January 2023, rejected the objections raised by the Union government. As per a report of Scroll, the collegium had stated that the manner in which Sundaresan had expressed his views “does not justify the inference that “he is a highly biased opinionated person or that he has been selectively critical on social media on important policies, initiatives and directions of the government”. In addition to this, the Collegium had also rejected the allegation that Sundaresan had any “links with any political party with strong ideological leanings”.

The collegium had further emphasised the fundamental right to freedom of speech and expression which is available to all the citizens of India under the Constitution under Article 19.

“Expression of views by a candidate does not disentitle him to hold a constitutional office so long as the person proposed for judgeship is a person of competence, merit, and integrity,” the collegium had then stated.

According to a report in the Leaflet, the collegium had believed that advocate Sundaresan’s experience with commercial law would be beneficial to the Bombay High Court, which handles a lot of issues pertaining to securities and commercial law, among other areas. It is worth noting that, in this tussle between India’s higher judiciary and the executive, the union government, through it’s adant conduct, was finally compelled to give in to the appointment after nearly two years of the initial recommendation. This essentially means that Sundaresan has lost out on seniority over seven judges whose names were recommended by the collegium and appointed by the Union government in the interim.

Justice Victoria Gowri versus advocate Sundaresan — cherry picking by the Union government?

The stance taken by the union government in the case of appointment of advocate Sundaresan is in stark contrast with the appointment and elevation of L. Victoria Gowri as an additional judge of the Madras High Court.

The appointment of the impugned judge had been processed by the Union government at extraordinary speed even as there was an uproar regarding the appointment. Questions had been raised after some of her interviews and speeches had come to light wherein it was felt that her unabashed prejudice against minorities was evident. Talks of her links with the ruling BJP (Bharatiya Janata Party) had also surfaced. Her oath taking ceremony had taken place while the Supreme Court was still hearing petitions against her appointment. The petitions had highlighted that by her making speeches denouncing Christians and Muslims she had rendered herself ineligible to act without discrimination “on the ground of religion”. The said petitions had been rejected by the Supreme Court based on the ground that the suitability of any appointee cannot be revisited after the collegium had decided on it.

While the Union government has had a mentality of picking and choosing their favourites and not abiding to either rule or principle, the present Chief Justice of India has maintained his stance of protecting the right to speech and expression of those advocates under scrutiny for judgeship.

In a recent conversation at Harvard Law School, USA, CJI DY Chandrachud responded to a question on the controversial appointment of Justice Victoria Gowri. The audience member had raised concerns about the collegium not withdrawing the recommendation despite lawyers accusing her of making “hate speeches” against religious minorities.

Upon this, as per a report of LiveLaw, CJI Chandrachud explained the multiple levels of scrutiny and feedback from various entities, including investigative agencies, in the process of judicial appointments. He had highlighted the delicate balance between promoting transparency and protecting the privacy of individuals being considered for judgeship, raising apprehensions regarding the unwillingness of qualified individuals to accept judicial office due to extreme scrutiny.

Most importantly, CJI Chandrachud had said that past political connections would not necessarily disqualify individuals from becoming judges.

As per the report of the LiveLaw, CJI Chandrachud had said “You said that she was a member of a political party. We looked at it very, very carefully. The nature of the speech, which that judge is alleged to have made at a particular point of time, again, is looked at very carefully. One of the processes that we follow in the collegium is to ask for a report from the chief justice. If we are in doubt as the collegium, we go back to the chief justice of the high court and we say, “Well, this has been drawn to our notice, would you please give us a brief report on whether this is true or false?” We ask for feedback, we share that feedback with the government. The process of appointing judges is a very broad-based collaborative process, in which no one arm of the state has a decisive role to play. And just to give you one example, one of our greatest judges, Justice Krishna Iyer, who came out with some of the finest judgments, had a political background. My own experience has been that judges who have appeared for a cross-section of diverse political views across the spectrum have turned out to be amazing judges.”

A point of contention?

The collegium, which comprises the five senior-most justices of the Supreme Court including the Chief Justice of India decide on the appointments and transfers of judges to the top court and the High Courts. These recommendations must be approved by the Union government. The appointment of judges has become a point of contention between the collegium and the Union government in recent years.

On November 7, the Supreme Court had expressed its disapproval of the ‘pick and choose’ method being adopted by the central government as they indulge in selectively accepting names from the collegium resolutions for judges’ appointments, impacting the whole seniority of the judges under consideration. While hearing the writ petition filed by the non-profit Centre for Public Interest Litigation raising the issue of delay in judicial appointments, the Supreme Court bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia had eprecated the Centre’s practice of ‘segregating’ collegium recommendations, which resulted in the inter-se seniority of judicial nominees being disturbed.

Justice Kaul, addressing the Attorney General for India R Venkataramani had said, “This selective business…This pick-and-choose must stop,” as per a report of LiveLaw.

In January 2023, the Union government had also ignored a specific recommendation put forth by the collegium regarding the appointment of R. John Sathyan first, an advocate whose candidature was earlier opposed by the Ministry. His judgeship was also for Madras High Court.

While re-iterating his name, the Supreme Court collegium had observed that an advocate would not become unsuitable for judgeship merely because he had shared on the social media a news article critical of the Prime Minister. The opinion had been expressed in the context of the suicide of a medical student after her reported inability to secure a seat in medical college, despite scoring well in examinations.

Ironically, R. John Sathyan’s name still remains pending with the Union government, while Justice Gowri now has seniority over him. The conduct of the Union government is sending a clear message that the present regime will pick and choose among those approved by the collegium, in a manner informed by its own rigid political preferences.

The other pending reiterated names include advocate Saurabh Kirpal for the Delhi High Court, an openly gay advocate, whose candidature has been deferred by the Centre five times. The recommendation of advocates Amitesh Banerjee and Sakya Sen for the Calcutta High Court also remain pending.

Accused of severe attacks on fundamental freedoms, the Modi regime’s contempt of the institution of the judiciary and it’s inalienable independence, bode ill for Indian democracy.

Related:

Questions on Collegium haunt Budget Session; 18 names with SC for reconsideration

Collegium System is Law of the Land, Must Be Followed: Supreme Court to Centre

Is the Centre overreaching itself in returning Collegium recommendations, again?

Centre returns Saurabh Kirpal’s file to Collegium for the 5th time

“It frustrates the whole system”: Supreme Court voices deep anguish against Centre sitting over Collegium recommendations

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