Opinion: Collegium, crisis, and credibility

Lack of transparency, limited diversity, and patronage expose structural flaws in India’s Supreme Court collegium system

By Nayakara Veeresha

The current Supreme Court Collegium(SCC) system came into existence as a result of the judicial pronouncements in the following cases:
• SPGupta case (December 30, 1981) or the First Judges Case: Reiterated the executive’s role in the appointment of judges as envisaged in the Constitution.
• Supreme Court Advocates on Record Association versus Union of India, also known as the Second Judges Case (October 6, 1993): This decision gave primacy to the Chief Justice of India (CJI) over the President, a departure from democratic norms, reducing the Office of the President to an approving authority.
• In the Special Reference case of 1998 or the Three Judges Case (October 28, 1998): the guidelines for the addition of four senior-most judges, along with the CJI, for appointing judges. This also reinstated the collegium system established in the Second Judges’ case.

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Judicial Independence

One of the important reasons for the establishment of the collegium was to check interference by the Legislature or the Executive in the functioning of the Judiciary, particularly in judicial appointments. The underlying premise is that such intervention is contrary to judicial independence, which forms part of the basic structure of the Constitution.

Judicial independence began to erode when the Union government attempted to bypass the seniority norm in appointing Supreme Court judges. Historically, this happened in 1973 and 1977 during IndiraGandhi’s tenure. In both cases, the Union government failed to stick to the seniority convention, sparking a rift between the Executive and higher Judiciary, for the first time in Independent India. This political intrusion eventually resulted in the establishment of the collegium system through jurisprudential governance, based solely on the basis of interpretive power of the Constitution.

Lacunae in the System

The collegium’s opacity, lack of transparency, and unaccountability have resurfaced with the non-disclosure of the dissent note by Justice BV Nagarathna, Member of the SCC, regarding the elevation of Justice Vipul Manubhai Pancholi, Chief Justice of the Patna High Court, as a Supreme Court judge. In its resolution dated 25 August 2025, the collegium also recommended Justice Alok Aradhe, Chief Justice of the Bombay High Court, as a Supreme Court Judge. The Centre approved the same, and the President’s office issued the Gazette notification on the same on 27 August 2025.

The collegium’s opacity and unaccountability have resurfaced with the non-disclosure of Justice Nagarathna’s dissent note on Justice Vipul Manubhai Pancholi’s elevation to the SC, highlighting persistent flaws in the system of judicial appointments

The collegium’s recommendation and its almost instant approval by the government, despite a dissenting note, are disturbing and expose serious lacunae in the system. This is because of several reasons:

• The collegium resolution did not disclose Justice Nagarathna’s dissent despite her request for its publication.
• The resolution failed to adhere to the 2017 precedent requiring reasons for the appointment and elevation of judges.
• The government’s fast-track action only deepened concerns over judicial accountability in appointment.

It is important to note that the resolutions lacked details about appointees, their performance as Chief Justices of High Courts, and other necessary material to be uploaded as part of a transparent mechanism. The collegium in October 2017 resolved to publish such information to ensure transparency and accountability. The recent appointments contradict these Standard Operating Procedures, undermining principles of good governance.

Critical Issues

Against this backdrop, this article analyses the emergence, functioning, and challenges facing the collegium, with emphasis on transparency and accountability. In doing so, Habermas’s concept of legitimation crisis is applied to contextualise contemporary developments. One of the critical issues with the collegium system is its inconsistency in adhering to public disclosure of the information and reasons behind the appointment and elevation of a judge.

With the recent appointment of two judges in August, the Supreme Court reached its full strength in terms of approved vacancies ie, 34. However, there is an imbalance in terms State’s representation and also social diversity. Justice Vipul Manubhai Pancholi became the third from Gujarat, apart from Justice Pardhiwala and Anjaria, effectively excluding representation from several other States.

As of July 28, 2025, there were 765 High Court judges across India. Of these, only 2.22 per cent are from the Scheduled Tribe and 3.13 per cent from the Scheduled Castes. Women judges comprise just 4.44 per cent. Former Chief Justice of India DY Chandrachud had noted the lack of senior women judges as a barrier to their elevation. In the present instance, however, senior women judges were overlooked, suggesting a disregard for seniority and depriving women of their rightful representation.

Alarming 1.83 per cent of the collegium-recommended High Court judges are relatives of sitting Judges, raising concerns about patronage appointments. Overall representations of SC, ST, OBC, Women, and backward remain abysmally low. The Most Backward Class/Backward Class are the least represented (0.9 per cent), whereas Other Backward Class has the highest representation with 12.15 per cent.

The severe underrepresentation of women SCs, STs, and other marginalised communities undermines the legitimacy of the collegium system. The lack of robust social composition, issues of transparency, and accountability threaten the very edifice of judicial governance.

(The author is Assistant Professor, Symbiosis Law School, Pune, Symbiosis International (Deemed University), Pune. Views are personal)