[Answered] A dissent on a Collegium elevation highlights the need for a new framework. Examine how a transparent, criteria-based system for judicial appointments can enhance the accountability and legitimacy of the judiciary.

Introduction

India has nearly 400 vacancies across High Courts (Department of Justice, 2024). Recent dissent within the Collegium highlights that opaque judicial appointments undermine legitimacy, demanding a transparent, criteria-based system ensuring accountability, diversity, and independence.

The Context: Justice Nagarathna’s Dissent

1. Justice B.V. Nagarathna, the lone woman Supreme Court judge, dissented against the elevation of Justice Pancholi (2025), questioning the criteria, diversity, and past credibility concerns.
2. She invoked the NJAC Judgment (2015, 4:1) where the Court struck down parliamentary oversight but emphasised “independence of the judiciary” as the basic structure.
3. The dissent raised concerns about regional imbalance, lack of women representation, opaque transfer records, and ignoring seniority norms — all indicators of systemic opacity in appointments.

Why the Collegium Faces a Legitimacy Deficit

1. Opaque Functioning: Collegium resolutions lack detailed reasoning, creating a perception of arbitrariness.
2. Regional & Gender Imbalance: As of 2024, women constitute only 12% of SC judges and several High Courts remain unrepresented (J&K, Orissa, Jharkhand, NE states).
3. Executive-Legislative Tug of War: While NJAC was struck down, the executive continues to delay appointments and transfers (Law Commission, 230th Report).
4. Erosion of Meritocracy: Concerns of favouritism and lack of transparency (e.g., lawyers’ delegation influencing transfers in Gujarat HC, 2023) threaten institutional credibility.

Need for a Transparent, Criteria-Based Framework

1. Clear, Codified Criteria: Parameters should include: merit (judgments, integrity, case disposal rates), diversity (region, gender, marginalised communities), and constitutional values. Similar to UK’s Judicial Appointments Commission (JAC) that publishes vacancy notices, conducts interviews, and uses scoring rubrics.
2. Transparent Procedures: Publish Collegium deliberations with reasoned justifications, barring sensitive inputs. Adopt RTI-compliant disclosure norms, while protecting judicial independence (2nd Administrative Reforms Commission, 2009).
3. Broader Consultation Mechanism: Mandate consultations with non-Collegium judges familiar with regional HCs (as per SC’s own “Role of Collegium” guidelines). Create independent secretariats under the Collegium to verify service records and complaints.
4. Diversity and Inclusivity as Constitutional Imperatives: Justice Nagarathna’s dissent highlighted under-representation of women and smaller HCs. Only 11 women have ever been SC judges, and none from NE HCs. Constitutional principle of “reflective representation” demands a judiciary that mirrors India’s social diversity.

External Models and Best Practices

1. UK JAC & South Africa JSC: open advertisements, interviews, and parliamentary scrutiny.
2. Kenya’s Judicial Service Commission: publishes shortlists and conducts televised interviews.
3. India could adopt a hybrid model: retain judicial primacy but incorporate structured evaluations and limited external oversight.

Way Forward

1. Codify appointment criteria through a Judicial Appointments Charter endorsed by the SC and Parliament.
2. Digitise performance metrics (disposal rate, pendency) for objective assessment.
3. Establish an Independent Collegium Secretariat for data, diversity tracking, and complaints review.
4. Institutionalise annual diversity audits to ensure inclusivity and balanced representation.

Conclusion

As Alexis de Tocqueville argued in Democracy in America, legitimacy flows from transparency and accountability. For India’s judiciary, codified, criteria-based appointments can safeguard credibility, independence, and democratic trust.