Introduction
In our last lesson, we charted the remarkable evolution of the collegium system, tracing its origins to the judiciary's effort to shield itself from executive overreach during and after the Emergency. We saw how the Supreme Court, through the "Three Judges Cases," reinterpreted the Constitution to transfer the power of judicial appointments from the executive to a small group of senior judges, all in the name of safeguarding judicial independence.
Now, we turn to the other side of this critical debate. While the collegium was born from a desire to protect a cornerstone of democracy, the system itself has faced decades of trenchant criticism for being undemocratic, secretive, and unaccountable. This lesson addresses your learning outcome: to analyze the core criticisms of the collegium system, focusing on its opacity and lack of accountability. We will dissect the arguments that portray the collegium not as a saviour of judicial independence, but as an "imperium in imperio"—an empire within an empire—operating beyond any meaningful checks and balances.
The Core Criticisms: Opacity and Unaccountability
The collegium system is unique in the world; no other liberal democracy has a system where judges appoint other judges. This has led to a fundamental paradox: a mechanism created to protect democratic principles is itself criticized for lacking democratic legitimacy. The criticisms largely fall into two interconnected categories: opacity (a lack of transparency) and a consequent lack of accountability.
1. Opacity: "A Process Shrouded in Secrecy"
The most persistent charge against the collegium is its complete lack of transparency. The selection process happens behind closed doors, with no formal, public record of the deliberations, no established criteria for selection, and often no reasons given for why one candidate is chosen over another, or why a recommendation is rejected.
This is not just a critique from outsiders; it has been a point of contention within the judiciary itself. To understand the depth of this problem from the perspective of those who have been inside the system, watch the following discussion featuring former Supreme Court and High Court judges.
BUILDING A TRANSPARENT AND ACCOUNTABLE COLLEGIUM-JUSTICES. AP SHAH,LOKUR,DEEPAK GUPTA,PROF.RAJKUMAR
This panel discussion from Live Law, featuring former judges like Justice A.P. Shah and Justice Madan Lokur, provides a candid, first-hand account of the collegium's failings.
Please watch two key segments: Justice Shah's critique: He outlines several problems, but focus on his points about the system's opacity, its informal operation, and the lack of proper investigation into candidates, leading to inherent biases and nepotism. Justice Lokur's analysis: He discusses the role of intelligence agency inputs and how information can be selectively shared or withheld from the collegium, making the process even more opaque and susceptible to manipulation.
As the judges highlighted, this secrecy has several damaging consequences:
- No Objective Criteria: There are no publicly known, measurable standards for assessing the "merit," "ability," and "integrity" of candidates. Decisions are left to the subjective and collective wisdom of a handful of individuals.
- Arbitrariness: The lack of stated reasons makes it impossible to know if a decision was based on sound judgment or on prejudice and personal preference.
- Nepotism and "Uncle-Judge Syndrome": The secretive process is often blamed for fostering an "old boys' club" atmosphere, where personal connections, family ties, and chamber loyalties play a significant role. This leads to the "uncle-judge syndrome," where relatives of sitting or former judges are perceived to have an inside track to appointment.
- Lack of Diversity: The system is criticized for perpetuating a lack of social diversity on the bench, with critics pointing to the consistent underrepresentation of women and individuals from marginalized caste and religious communities.
The following academic paper delves into these very criticisms, providing a structured analysis.
[PDF] Collegium System vs NJAC: A Critical Study on Indian Judiciary
This paper provides a concise summary of the key arguments against the collegium system.
Please read two sections from the "Critical Evaluation of Both Systems": The section on Transparency (p. c884). Notice the description of the proceedings as opaque and the reference to the case of Justice C.S. Karnan as an example of its potential consequences. The section on Diversity and Inclusivity (p. c885), which addresses how the system has been faulted for elitism and has led to the underrepresentation of key demographics.
2. Lack of Accountability: Who Guards the Guardians?
The opacity of the collegium directly leads to its second major flaw: a complete lack of accountability. If the reasoning behind decisions is secret, the decision-makers cannot be held responsible for the outcomes. The collegium is not answerable to the Parliament, the executive, or the public.
This creates several issues:
- No Checks and Balances: The system, by design, removes the executive check on judicial appointments. However, it fails to replace it with any other form of oversight, leading to an institution with unchecked power over its own composition.
- Erroneous Appointments: Critics argue that the lack of accountability and transparency has led to questionable appointments, where individuals with perceived biases or insufficient merit have been elevated to the bench. The controversy over the appointment of Justice Victoria Gowri to the Madras High Court, which Justice Shah mentioned, is a prime example cited by critics.
- Executive Manipulation: Paradoxically, while the collegium is meant to be independent, its opaque nature can be exploited by the executive. The government can delay appointments it dislikes, "segregate" lists of recommendations to disrupt seniority, or use its own intelligence reports to influence the collegium's decisions, all without public scrutiny. Justice Lokur's point about the government sitting on files for years without consequence illustrates this accountability gap.
The paper you just consulted also has a direct section on this point.
[PDF] Collegium System vs NJAC: A Critical Study on Indian Judiciary
Let's return to the same paper to focus on the theme of accountability.
Please read the section on Accountability (p. c885). Pay attention to the discussion of the Gopal Subramanium case as a key example of arbitrary decision-making without explanation.
The Constitutional Question: A Judicial Amendment?
Beyond the practical criticisms of opacity and unaccountability, there is a fundamental legal and constitutional argument against the collegium system. Critics argue that the Supreme Court, in the Second and Third Judges Cases, essentially rewrote the Constitution through judicial interpretation. The power to amend the Constitution lies with the Parliament (Article 368), not the judiciary.
This argument was forcefully articulated by a two-judge bench of the Supreme Court itself in the 2010 Suraj India Trust case, which posed a series of unanswered questions to the then Chief Justice of India.
Collegium System EXPLAINED For Prelims & Mains + PYQs & SC Judgments | Sarmad Mehraj | Polity UPSC
This segment from an Unacademy IAS lecture provides an excellent summary of this constitutional critique.
Please watch the portion from this criticism. The video explains the pointed questions raised by the Supreme Court itself, such as: Did the judgments in the Judges Cases amount to amending the Constitution? Have these judgments made certain words in the Constitution, like the role of the Governor or the consultation of High Court judges, "redundant"?
This internal critique highlights the profound unease even within the legal system about the constitutional legitimacy of a system that is not found in the text of the Constitution itself.
Conclusion
Today's lesson explored the significant and multifaceted criticisms of the collegium system. While born out of a legitimate concern for judicial independence, its functioning has raised profound questions about its democratic legitimacy, transparency, and accountability.
Key Takeaways:
- Opacity is Central: The core criticism is the collegium's extreme lack of transparency. Its proceedings are secret, its criteria are undefined, and its decisions are unexplained.
- Lack of Accountability: This opacity leads to a total lack of accountability. There are no effective checks and balances on the collegium's power, making it answerable to no one.
- Consequences of the System: These flaws are blamed for fostering nepotism, hindering diversity on the bench, and allowing for both questionable appointments and external manipulation by the executive.
- Constitutional Legitimacy: A fundamental legal argument questions the very basis of the collegium, suggesting it amounts to a judicial "amendment" of the Constitution, a power the judiciary does not possess.
These powerful criticisms created immense pressure for reform. The executive and legislature argued that a new body was needed to bring transparency and accountability to judicial appointments while still preserving independence. This led to a major constitutional showdown. In our next lesson, we will analyze the proposed alternative: the National Judicial Appointments Commission (NJAC), its structure, and the reasons the Supreme Court ultimately gave for striking it down.