Supreme Court judge Justice Ujjal Bhuyan flagged a return of opacity in the collegium, noting the last three resolutions gave no reasons, and warned it lets unsuitable judges in.
New Delhi: Supreme Court judge Justice Ujjal Bhuyan has flagged what he described as a return of opacity in the collegium’s functioning, cautioning that the failure to disclose reasons in proposals for the appointment of judges does a disservice to deserving candidates and, at the same time, opens the door for unsuitable persons to enter the judiciary and go on to make remarks that are contrary to constitutional values.
Justice Bhuyan made the observations on Saturday, 1st August 2026, while delivering the keynote address, and later joining a panel discussion, at the launch of “The Judicial Transparency Index: Assessing Disclosure of Information by the Supreme Court and the High Courts,” a report brought out by the JALDI initiative of the legal think-tank Vidhi Centre for Legal Policy.
‘A disservice to genuinely outstanding judges’
Explaining how the absence of reasons cuts both ways, Justice Bhuyan observed that it deprives able judges of due recognition even as it shields the entry of those who should not be on the Bench:
“By not giving reasons, the institution actually does a disservice to many judges who are genuinely outstanding and have done tremendous work. Conversely, by withholding reasons, we also create space for individuals to enter the judiciary who may later describe groups of people (with references to their treatment of) ‘ants’ and make other remarks that are wholly unconstitutional and contrary to the values of the Constitution.”
The reference was to a controversial 2024 speech by a former Allahabad High Court judge at a Vishva Hindu Parishad event, in which he had made veiled references directed at the Muslim community. Taking exception to such remarks, Justice Bhuyan maintained that judicial appointments must follow proper deliberation supported by reasons, asking:
“What harm is caused if there is informed public debate on such decisions?”
‘The last three resolutions contain no reasons whatsoever’
Justice Bhuyan noted that earlier collegium resolutions, whatever their limitations, had at least carried some reasons in support of the recommendations made. That practice, he said, appeared to have lapsed:
“Some may even say they were somewhat formulaic or copy paste in nature. But at least some reasons were given to justify the recommendations. I have noticed that the last three collegium resolutions contain no reasons whatsoever. Is this a step back from the principle of transparency?“
He observed that citizens have a right to know what is happening in the courts and to know who their judges are. In his keynote, he had urged the JALDI team to examine opacity in the collegium system as well, noting:
“Deliberations over the elevation and transfer of judges remain confidential; reasons for rejecting or deferring a recommendation are rarely disclosed in full; and the criteria applied are not codified in any publicly accessible instrument comparable to the Memorandum of Procedure’s own limited disclosure.“
The Kirpal example
Justice Bhuyan also recalled that the collegium’s recommendation to appoint Senior Advocate Saurabh Kirpal as a High Court judge had not been cleared by the Central government, even after the collegium reiterated it. He said he found the collegium’s stated reasoning persuasive:
“I would say the reasons given by the Supreme Court Collegium were quite convincing. At least, I am convinced by the reasoning.“
Kirpal: reasons as a check on the collegium itself
Kirpal, who was among the panellists, agreed that reasons ought to be recorded when candidates are cleared for judgeship, but urged that they be substantive rather than formulaic:
“Those reasons should be objective rather than the kind of copy paste reasons Justice Bhuyan referred to. They must be genuine. When you elevate someone, you also have to satisfy the Bar as to why others, who seemingly possess the same qualities, were not elevated. What was exceptional about that particular individual?“
He argued that a duty to give reasons would operate as a discipline on the collegium itself:
“Requiring reasons would act as a check on the collegium itself. It would prevent what others, not I, have described as arbitrary and capricious decisions in rejecting candidates. It is a powerful institutional check on the judiciary.“
Addressing the criticism of judicial power as “the tyranny of the unelected,” Kirpal accepted that judges deserve institutional protection but said this heightened, rather than lessened, their obligation to be transparent:
“Judges must be protected. But in the absence of the kind of accountability that is imposed on the executive through elections or on governments through judicial decisions, the obligation on judges themselves is that much greater. Their legitimacy and public confidence must come from their willingness to share information and to say, ‘we have nothing to hide.‘”
Sondhi: transparency cannot rest on the judiciary alone
Senior Advocate Aditya Sondhi, also on the panel, welcomed the disclosure of reasons in principle but entered a caveat — that certain grounds for declining elevation, such as an income threshold, ought not to be publicised, since they might unfairly reflect on lawyers whose practice does not lend itself to high earnings:
“A civil rights lawyer, a human rights lawyer or a labour lawyer may not satisfy an income threshold. Is that really a reflection of their competence? So, personally, I think reasons should not be assigned in such cases.“
Sondhi also pressed that the burden of transparency could not fall on the judiciary alone, pointing to the executive’s own silence:
“If we are speaking about transparency in the process of judicial appointments and elevations, can the government also tell us why a particular file has not been cleared even three years after the collegium has reiterated the recommendation?“
Background: the collegium system
The collegium is the mechanism through which judges of the Supreme Court and the High Courts are appointed and transferred in India. It is not a creation of the Constitution’s text but of judicial interpretation — evolved through a line of decisions known as the Three Judges Cases, which read the requirement of “consultation” with the judiciary in Articles 124 and 217 as meaning the primacy of the judiciary’s view in appointments.
In its present form, the Supreme Court collegium consists of the Chief Justice of India and the four senior-most judges of the Court, and it recommends candidates for elevation to the higher judiciary. The government may return a recommendation for reconsideration, but if the collegium reiterates it, the recommendation is ordinarily binding — though, as the Kirpal instance illustrates, files can remain unactioned for extended periods without formal rejection. The procedural framework governing appointments is set out in a document called the Memorandum of Procedure.
The system has long drawn criticism from across the spectrum for its opacity — the absence of publicly known criteria, the confidentiality of its deliberations, and the practice of recording little or no reasoning for who is chosen, deferred or passed over. An attempt to replace it with a National Judicial Appointments Commission was struck down by the Supreme Court in 2015 as violative of the basic structure. Against that backdrop, a serving judge of the Supreme Court publicly questioning whether the collegium has regressed on transparency — and doing so at the launch of a report measuring exactly that — lends the remarks considerable weight.
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