End the Culture of Secrecy in Judicial Appointments

The Lift Line

Independence means the executive cannot choose the judges. It has never meant the public cannot know how they were chosen.

Why This Editorial Matters for Your Exam

Judicial appointments are among the most reliably examined GS2 topics, and answers usually recount the Judges Cases without engaging the live question of collegium procedure. This editorial supplies that engagement.

GS Paper 2: Structure, organisation and functioning of the judiciary; separation of powers; transparency and accountability; appointment to constitutional posts.

Background and Context

The Constitutional Text and Its Interpretation

Article 124 governs appointment of Supreme Court judges and Article 217 appointment of High Court judges. Both use the language of consultation with the Chief Justice of India. The entire collegium edifice rests on how that single word was read.

The Court in 2015 also acknowledged that collegium procedure required improvement, and directed that the Memorandum of Procedure be revised. It has remained in impasse since then: the Supreme Court has taken the position that the Memorandum stands finalised, while the Government maintains that finalisation is still pending.

What Changed

The editorial’s specific factual claim is that since 2024, specifically from 28 November of that year, collegium resolutions have stopped naming the judges who participated and stopped recording reasons, the earlier practice having run under Chief Justice Chandrachud and been discontinued thereafter. This is a change in practice, not in law, which is precisely why it can be reversed without any constitutional amendment.

The Analysis

1. The editorial’s central move is to separate two kinds of insulation. Judicial independence requires insulation from executive control. Non-disclosure provides insulation from public scrutiny. These are different things, and conflating them allows opacity to be defended in the language of independence.

2. The asymmetry argument is the strongest point. The executive participates in the appointment process and therefore already knows what the resolutions no longer disclose. Withholding it from the public alone does not protect the collegium from the executive; it protects it only from citizens, which is the reverse of the intended direction of protection.

3. Opacity converts disagreement into imputation. When a recommendation is reversed, a name is superseded, or a file sits unmoved, the absence of reasons means observers supply their own. The institution loses the ability to distinguish a decision that was defensible from one that was not, because it has declined to offer the material on which that distinction rests.

4. The confidentiality objection is real but narrow. Candid assessment of a candidate’s integrity or temperament genuinely requires confidence, and publishing adverse comparative assessments would deter good candidates from consenting to consideration. But this argument does not reach published vacancies, objective eligibility criteria, or reasons supporting a successful recommendation, which is exactly the scope the editorial proposes.

5. The proposal is procedural, not structural. Nothing here requires revisiting the 2015 judgment or reopening the NJAC question. That restraint is what makes it plausible: it asks the collegium to publish more, not to surrender primacy.

Data and Institutions Vault

Prelims-grade facts:

• Article 124: Supreme Court appointments. Article 217: High Court appointments. Both use “consultation” with the CJI.
• Judges Cases: 1981 (First, executive primacy), 1993 (Second, judicial primacy via collegium), 1998 (Third, procedure elaborated), 2015 (Fourth, NJAC struck down).
• The 99th Constitutional Amendment Act and the NJAC Act were struck down in 2015 as violating the basic structure.
• The Memorandum of Procedure has been in impasse since 2015: the Supreme Court treats it as finalised, the Government treats it as pending.
• The Supreme Court collegium for appointments to the Supreme Court comprises the CJI and the four senior-most judges; for High Court appointments it is the CJI and the two senior-most judges.
• Per the editorial, collegium resolutions have not named participating judges or given reasons since 2024, the change dating from 28 November of that year.

⚠️ Watch the trap: The collegium is not mentioned in the Constitution. Do not write that it was “established under Article 124”. It is a judicially evolved convention derived from interpreting the word “consultation”. Also distinguish the collegium (recommends) from the President (appoints, under Article 124(2)).

The Debate

FOR (publish more): Independence protects against executive control, not public knowledge. The executive already possesses what the public is denied. Unexplained decisions cannot be distinguished from arbitrary ones. Publishing vacancies, criteria and reasons costs nothing that confidentiality legitimately protects.

AGAINST (confidentiality enables candour): Honest assessment of competence and temperament is possible only in confidence. Published reasons would become either anodyne or reputationally damaging to those not recommended, deterring candidates from consenting to consideration. The remedy for poor appointments lies in internal discipline, not public argument.

Balanced verdict: The two positions are reconcilable because they concern different categories of information. Integrity-related material genuinely requires confidence and should stay in a confidential annexure. Vacancies, eligibility criteria and the reasoning behind successful recommendations engage none of the confidentiality rationale and should be published. A two-tier disclosure rule delivers both, and finalising the Memorandum of Procedure would give it durability rather than leaving it to the practice of each successive collegium.

How to Think About This

When an institution defends secrecy in the name of independence, ask a precise question: independent of whom? Then check whether the withheld information is actually unavailable to the party the institution claims to be resisting.

Here, the executive is a participant and therefore already informed. Non-disclosure consequently does no work against the executive, and all of its work against the public. Wherever that pattern appears, in regulatory bodies, in selection committees, in disciplinary processes, the secrecy is protecting the institution from accountability rather than from capture. Making that distinction is what turns a description of the collegium into an argument about it.

Diagram-in-Words

Takeaway Box

Lift line: Independence means the executive cannot choose the judges. It has never meant the public cannot know how they were chosen.

Prelims hooks: Articles 124 and 217 and the word “consultation”; Judges Cases of 1981, 1993, 1998 and 2015; 99th Amendment and NJAC Act struck down in 2015 on basic-structure grounds; Memorandum of Procedure in impasse since 2015, treated as finalised by the Court and as pending by the Government; SC collegium is the CJI plus four senior-most judges, HC collegium the CJI plus two.

Ethics and interview angle: Can an appointment process be simultaneously independent of the executive and accountable to the public, or does one necessarily erode the other?

PYQ linkage: Connects to past UPSC Mains questions on judicial appointments, the NJAC judgment, separation of powers and judicial accountability.

Probable question: “Opacity in judicial appointments protects the judiciary from scrutiny rather than from capture.” Critically examine.

Source: End the Culture of Secrecy in Judicial Appointments — Ujiyari.com | Free UPSC & State PCS Editorial Analysis