LAST WEEK, the outgoing Chief Justice of India (CJI), Justice B.R. Gavai, while responding to a question from the media, said that the Collegium had unanimously decided not to publish reasons for its recommendations. He justified this by saying that giving reasons might hamper the future prospects of the candidates concerned.
I would return shortly to Justice Gavai’s decision to retreat from transparency. First, however, it is necessary to set out in detail how the Collegium, under different CJIs, has oscillated between opacity and some semblance of transparency and accountability in the appointment process.
A system that slipped into opacity
The Collegium system, which owes its existence to judicial interpretation, came into being in 1993. Since then, the power to appoint judges has rested primarily — at least de jure — with the Collegium.
This mode of appointment of judges, whereby judges appoint judges, is often defended as essential to safeguarding judicial independence, ensuring that appointments are not predominantly at the behest of the executive, which itself constitutes a large chunk of the litigants before the courts.
