New Delhi: Few decisions shape a democracy more quietly, yet more powerfully than who sits on its highest courts. Judges are not just interpreters of law, they are often the last bulwark against executive overreach. Yet, the selection of these guardians of democracy is shrouded in secrecy.

It is for this reason that the recent dissent within the Supreme Court collegium has stirred such controversy. Last month, Justice B.V. Nagarathna, the Court’s only woman judge, poised to become India’s first female Chief Justice, issued a formal dissent against the collegium’s recommendation to elevate Justice Vipul Pancholi to the apex court.

Though her dissenting note has not been made public, reports indicate her concerns focus on seniority, regional representation, and the circumstances surrounding Justice Pancholi’s transfer. Most worryingly, she is reported to have warned that going ahead with Pancholi's elevation could damage "whatever credibility the collegium system still holds."

That phrase lands hard because the Collegium System itself was built on the foundation of credibility rather than a Constitutional mandate. Historically, its origins lie in a moment of institutional anxiety; a response to growing fears of executive interference in judicial appointments in the aftermath of the Emergency.

In 1993, a nine-judge bench of the Supreme Court handed down a decision that would forever alter the Indian judiciary’s internal architecture. In Advocates-on-Record Association v. Union of India – more commonly known as the Second Judges Case, the Court gave unto itself a system that was not explicitly mentioned in the Constitution.

This was the Collegium System, which effectively transferred the power of judicial appointments from the executive onto a collegium of three seniormost judges, including the Chief Justice of India.

But the verdict also drew powerful dissents. Justices A.M. Ahmadi and M.M. Punchhi – both future Chief Justices of India – questioned both the constitutional validity and institutional consequences of such a seismic shift. They cautioned against reading into the Constitution what it did not explicitly say, and warned that such a fundamental change ought to come through a constitutional amendment, not judicial reinterpretation.

Legal scholar H.M. Seervai went further, calling the majority ruling “a low point of judicial competence.” Five years later, in the Third Judges Case, the bench delivered a unanimous verdict, expanding the collegium from three to five seniormost judges, thus cementing the judiciary's primacy in judicial appointments.

For thirty two years, this system has endured. But it has never been free from criticism. Time and again, both judges and lawyers have exposed fault lines in the collegium’s decision-making culture from the lack of transparency and accountability, to, at times, questionable appointments and omissions. Justice Nagarathna’s dissent too highlights one such fault line. While her sole dissent may not be enough to push pause on the appointment, it should ideally trigger reflection and debate. That has not occurred.

Outside the court, the Campaign for Judicial Accountability and Reforms (CJAR) has called for Justice Nagarathna’s dissenting note to be made public.

Their statement reads, “The strong dissent note of Justice Nagarathna has not been published, despite her expressly asking for the same to be published on the Supreme Court’s website.”

This demand for transparency echoes a broader critique of the collegium system, which has often been called out for lacking clear and consistent criteria for appointments, offering little explanation for why one candidate is chosen over another, and rarely disclosing dissenting opinions. Opacity isn’t the only problem, it’s what it obscures that matters: patterns of exclusion, favouritism, and a persistent lack of diversity.

High courts like Delhi, Bombay, and Gujarat are overrepresented in the Supreme Court while others are underrepresented. Many judges come from families with long legal legacies, fuelling allegations of nepotism. Meanwhile, Dalits, Adivasis, minorities, and women remain underrepresented. With virtually no external oversight, the collegium system remains powerful – but largely unaccountable.

But as critics call for change, supporters urge caution. Secrecy, they argue, is not a bug in the system, it is a feature. Confidentiality protects judicial deliberations from political interference, preserves the dignity of those considered but not selected, and insulates the judiciary from lobbying, external influence, media and public pressure. These are sound arguments: any reform must be careful not to compromise the very independence it seeks to strengthen.

But even as the judiciary guards its turf from within, these internal debates unfold against a backdrop of a bigger, darker question: who really controls the judiciary? The executive’s desire to dominate judicial appointments has long been a high-stakes power struggle with political muscle being flexed time and again.

Its boldest attempt to wrest control came with the National Judicial Appointments Commission (NJAC), which was introduced through a constitutional amendment to replace the collegium system with one that would give the executive a greater say in judicial appointments. In 2015, the Supreme Court struck it down, declaring it a violation of judicial independence.

Yet signs of political encroachment persist. In recent years alone, Justice Akil Kureshi was sidelined for elevation to the Supreme Court despite his seniority. Justice Jayant Patel resigned after being transferred before he could be appointed Chief Justice. Justice S. Muralidhar’s transfer, hurriedly formalised hours after his sharp courtroom remarks sparked widespread criticism.

This is why calls to scrap the collegium miss the point. The answer to a broken window is not to burn down the house. For what lies on the other side is not repair and reform, but handing over the keys of judicial independence to the executive.

And so, the question is not whether the collegium system should exist, but how it should evolve.

Over the years, there have been several proposals for reform: calls for a permanent secretariat to manage data on potential appointees, published criteria for selection, disclosure of dissenting views (when appropriate), and a commitment to greater regional and social diversity. Some of these bear serious consideration.

Justice Nagarathna’s dissent is a reminder that meaningful reform must come from within the judiciary itself. Until then, even the most meritorious appointments will face suspicion. Her intervention must not be seen as an attack on the collegium, but a call to make it stronger by making it more open, fair, and accountable. Dissent in this context is not destabilising, it’s constitutional.

And so, we must continue to ask tough questions; not because we wish to tear the system down, but because we want to see it stand stronger.

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