The debate over transparency in judicial appointments has resurfaced after Justice Ujjal Bhuyan of the Supreme Court of India recently observed that greater openness in the collegium process would strengthen public confidence and help ensure that merit remains the governing principle. Reformers argue that insulation from political interference was never meant to become insulation from constitutional accountability itself — a question that has remained unresolved for three decades.

The collegium is a judicial creation, not a constitutional one. The First Judges Case (1981) gave the executive primacy in appointments; the Second Judges Case (1993 4 SCC 441) shifted primacy to the collectively formed opinion of the Chief Justice of India and senior judges; the Third Judges Case (1998 7 SCC 739) expanded this into today’s five-member collegium. The reasoning was sound, but close to three decades later, the process remains among the least transparent in any major constitutional democracy: no notification of vacancies, no eligibility matrix, no known methodology for assessing candidates. Even Fali Nariman, credited as an architect of the collegium, later turned critic, recalling that it was ‘not receptive at all’ to the Bar. When the system’s own architects concede that it answers to no one, reform can hardly be called interference.

Resolutions without reasons

One has the example of the collegium’s own record on disclosure, which has moved backwards, not forwards — perhaps the clearest evidence of an institution retreating deeper into opacity. In October 2017, it began publishing resolutions with brief reasons for elevation, a step then hailed as a foundation for transparency.

That practice thinned steadily, and since November 28, 2024, resolutions have stopped naming which members took part in a decision or disclosing any reasoning at all. In November 2025, (then) Chief Justice of India (CJI) B.R. Gavai confirmed that the collegium had resolved to stop publishing detailed reasons altogether, citing concern that disclosure could harm the career prospects of candidates — a rationale that would equally justify withholding reasons from every rejected litigant.

This cannot be seen in isolation: the Court, in the MediaOne judgment (2023), held that sealed-cover secrecy is ‘antithetical to a transparent and accountable system’. If that principle governs the court’s own cases, why should a lesser standard govern its own?

This absence of due process has fuelled a recurring allegation: that opacity has allowed relatives of sitting and retired judges — the so-called ‘Uncle Judges’ — an easier passage to the Bench than first-generation lawyers with no lineage to lean on. It is important to remember this is not a complaint from critics from outside alone: former CJI R.M. Lodha himself remarked that nearly one in three High Court judges could be an ‘uncle’.

The allegation is not anecdotal: in 2018, the Union government flagged 11 of the 33 names recommended by the Allahabad High Court collegium, noting that they were relatives of sitting or retired judges. A broader assessment in 2025 found that nearly 30% of the Supreme Court judges — roughly 10 of 33 — had familial links to former judges. In January 2025, this issue pushed the collegium to consider barring judges’ kith and kin from consideration altogether (the proposal was discussed and in principle it was agreed to have higher scrutiny if candidates are relatives, but legally a bar was not created). That, in itself, is an admission that without a publicly defined selection matrix, there is no objective way to distinguish a meritorious relative from a beneficiary of judicial lineage.

This is where the judiciary’s own jurisprudence turns inward. Articles 14 and 16 guarantee equality and equal opportunity in public employment. In Secretary, State of Karnataka and Others vs Umadevi (2006 4 SCC 1), the Court held that appointments to public office cannot be made through backdoor methods and must ordinarily follow a transparent procedure open to eligible candidates. If constitutional equality demands openness in the recruitment of a clerk or an engineer, why should the highest constitutional offices remain exempt from comparable standards? To be sure, judicial appointments cannot be reduced to a competitive examination; qualities such as independence and temperament resist quantification. But, qualitative judgment does not require the total absence of procedure. It is prudent to note the irony: the Court itself held, in CPIO vs Subhash Chandra Agarwal (2019 3 SCC 1), that the CJI’s office falls within the Right to Information Act — a logic never extended to how judges are appointed.

What other democracies do

Other constitutional democracies show that transparency and judicial independence can coexist. In the United Kingdom, the Judicial Appointments Commission publicly advertises vacancies and conducts structured interviews; in South Africa, the Judicial Service Commission invites nominations publicly and conducts televised interviews. None of these systems is flawless, but each rests on a premise that India has yet to accept: independence is strengthened, not weakened, when citizens understand how judges are chosen.

India’s collegium continues to operate as though it belongs to an earlier era of institutional deference. Political theorist Jürgen Habermas argued that democratic legitimacy ultimately rests on the public sphere — an arena where institutions must justify themselves before informed citizens.

This is not abstract: every judicial appointment is now dissected on social media within minutes. The scrutiny of a CJI’s own remark comparing youngsters to ‘cockroaches’ travelled from placards at Jantar Mantar to trending hashtags within hours; it will not take long for such movements to arrive at the doorstep of the higher judiciary itself. Contempt jurisdiction, built for the newsroom and the courtroom gallery, cannot be used to trifle the scrutiny of this scale and anonymity — it is an alarm bell for a system that still keeps its own appointments behind closed doors and resists constructive criticism. Institutions that embrace reform voluntarily emerge stronger; those that resist witness a slow erosion of the legitimacy they seek to protect.

Reform, not retreat

None of this requires dismantling the collegium; it only requires modernising it. A transparent framework could publish anticipated vacancies in advance, invite applications from eligible advocates, disclose objective eligibility criteria, and record reasoned recommendations explaining why one candidate was preferred over another. Confidential inputs on integrity can remain protected — transparency does not demand disclosure of every file, only openness about the process, the criteria and the reasoning behind constitutional appointments.

This is ultimately not a contest between the judiciary and the executive, nor an attempt to weaken judicial independence. It is a question of whether one constitutional value is allowed to eclipse another. The Constitution promises an independent judiciary, but, equally, promises equality, fairness and reasoned decision-making; values that are complementary, not adversarial. The debate of the 1990s was executive versus judiciary. The debate of this decade is opacity versus transparency. Therefore, unless the collegium accepts that independence without accountability breeds the very distrust it was designed to prevent, this asymmetry between what the judiciary demands of every other institution and what it permits of itself will continue to exist.

Puhazh Gandhi P. is a lawyer and political analyst who writes on the Constitution, commerce and policies