Silence is not Neutral. A judge's professional life is built quietly. It is built through years spent reading records after court hours, writing judgments that may never attract headlines, resisting local pressures, and deciding causes involving liberty, livelihood and human dignity. When such a judge is considered for elevation, superseded, deferred or rejected without any publicly intelligible explanation, institutional silence can become its own form of judgment, one against which there is neither clarification nor appeal. It is in this context that Justice Ujjal Bhuyan's recent observation deserves serious attention.

Speaking at the launch of the Judicial Transparency Index, Justice Bhuyan remarked that by not giving reasons, the Collegium may be doing a disservice to judges who have performed tremendous work. He also emphasised that citizens have a right to know who their judges are and what kind of judicial work they have done. His concern was not merely about administrative transparency; it was about preserving the dignity of deserving judges and preventing opaque selection from sheltering unsuitable choices. The observation is significant because courts insist every day that administrative power must be exercised fairly, relevantly and for discernible reasons. The judiciary cannot demand a culture of justification from every other constitutional authority while treating its own constitutive process as entirely beyond explanation. Yet the answer cannot be indiscriminate disclosure. Judicial appointments involve reputations, confidential consultations, intelligence inputs and comparative assessments of individuals who may continue to practise or serve as judges if not selected. The real question, therefore, is not whether everything must be disclosed, but what must be disclosed, to whom, and in what form.

The Constitutional Journey to the Collegium

The Constitution does not expressly use the word “Collegium”. Article 124(2) provides for the appointment of Supreme Court judges by the President after the constitutionally prescribed consultation. Article 217 governs appointments to the High Courts, while Article 222 concerns the transfer of High Court judges. The present system emerged judicially. In S.P. Gupta v. Union of India, commonly known as the First Judges Case, the majority treated consultation as falling short of concurrence and accorded the Executive the decisive role. That position was reversed by the nine judge Bench in Supreme Court Advocates on Record Association v. Union of India, the Second Judges Case which gave primacy to the institutional opinion of the Chief Justice of India formed collectively with senior colleagues.

The Third Judges Case, In re: Special Reference No. 1 of 1998, widened and clarified the consultative structure. For Supreme Court appointments and High Court transfers, the Chief Justice of India must consult the four senior most puisne judges; for High Court appointments, consultation with the two senior most puisne judges of the Supreme Court is required, alongside relevant institutional inputs.

The attempted replacement of the Collegium through the Ninety Ninth Constitutional Amendment and the National Judicial Appointments Commission was invalidated in Supreme Court Advocates on Record Association v. Union of India, by a four to one majority. The Court held that the proposed framework impaired judicial independence, which forms part of the Constitution's basic structure. But several opinions in that very case candidly acknowledged the Collegium's deficits in transparency, accountability and objectivity. Thus, the constitutional legitimacy of judicial primacy does not establish the perfection of the process through which that primacy is exercised.

Reasons, Natural Justice and Institutional Legitimacy

Reasons perform at least three constitutional functions. They discipline the decision maker, demonstrate that relevant considerations were applied, and enable the affected person and the public to distinguish principled selection from preference, proximity or chance. The principles of natural justice cannot, however, be transplanted mechanically from an adversarial proceeding into the appointments process. A judge or advocate has no vested right to elevation merely because his or her name has been considered. Comparative selection for constitutional office is not equivalent to disciplinary adjudication. Every unsuccessful candidate cannot demand a public hearing or a judgment explaining why another person was preferred.

Nevertheless, where a decision is based upon adverse material concerning integrity, conduct, professional competence or constitutional suitability, elemental fairness requires that reliable material be distinguished from rumour. Where practicable, the candidate should be supplied the substance of the adverse input and given a limited opportunity to respond before an irreversible conclusion is reached. A confidential allegation should not silently destroy a reputation earned over decades. Natural justice here must operate contextually. It may not require complete disclosure of intelligence reports, identities of sources or internal judicial opinions. It does require a fair process, verification of adverse material, an internal record of reasons, and protection against decisions resting upon undisclosed prejudice.

The Supreme Court's decision in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, is instructive. While affirming the importance of transparency and accountability, the Court recognised the delicate balance between the public's right to know and the candidate's rights to privacy, reputation and dignity. It rejected both absolute secrecy and unqualified disclosure.

Why the Collegium May Hesitate to Disclose

There are legitimate reasons for confidentiality. Collegium members must be able to exchange candid assessments without every preliminary observation becoming a public controversy. Intelligence and background inputs may involve sensitive sources. Publicly recording why, a serving judge was not elevated may impair that judge's authority in the court where he or she continues to serve. For advocates, an adverse public statement may cause irreversible professional damage without any formal proceeding to test its accuracy.

Complete disclosure may also encourage lobbying, strategic media campaigns and litigation by disappointed candidates. Judicial selection often involves a comparative assessment of merit, integrity, seniority, diversity, temperament and institutional need. It may be impossible and sometimes unfair to reduce that exercise to a publicly ranked contest. These concerns explain confidentiality; they do not justify absence of reasons altogether. There is an important distinction between recording reasons and publishing every reason. A constitutional body must always record why it acted. Publication may legitimately be calibrated according to privacy, security and institutional necessity.

The Supreme Court has taken some meaningful steps by placing Collegium resolutions online and publishing appointment related data, including the source of candidates, dates of recommendations, representation of specified categories and whether candidates are related to sitting or retired constitutional court judges. These initiatives demonstrate that transparency can be expanded without dismantling judicial independence.

A Principled Middle Path

The choice is not between a secret Collegium and a televised confirmation hearing. India requires a model of structured transparency. The Collegium should first publish clear criteria governing merit, integrity, judicial temperament, constitutional values, seniority, diversity, professional competence and institutional requirements. Positive recommendations should ordinarily contain concise, candidate specific reasons referring to judicial work, professional standing and the institutional need being met. Where a recommendation is deferred or rejected, detailed reasons should be preserved in a confidential institutional record. A non stigmatizing public summary may be issued wherever possible. If adverse material materially affects the decision, its substance should ordinarily be communicated privately to the candidate, subject to source protection and compelling security concerns.

Transfer resolutions should disclose the broad institutional rationale, administrative necessity, better administration of justice or public interest without revealing sensitive particulars. The Collegium may also indicate whether a decision was unanimous or by majority, without publishing individual deliberative notes. A permanent judicial appointments secretariat should maintain verified professional data, significant judgments, disposal records, declared relationships, diversity indicators and responses to adverse inputs. Annual reports should disclose aggregate information regarding recommendations, deferments, reiterations, vacancies and delays. Such an arrangement would reduce dependence on informal knowledge and make institutional memory stronger than personal memory.

Justice Bhuyan's intervention should therefore not be understood as a demand to expose every confidential conversation. It is a call to recognise that unexplained power, even when exercised by judges, eventually diminishes public confidence. Judicial independence is not protected by silence alone. It is protected when citizens can see that those chosen to judge them were selected through a process marked by integrity, fairness and intelligible constitutional principle. The public need not be given the entire file. But it is entitled to know the standards applied, the institutional considerations involved, and why a person entrusted with constitutional power was found worthy of that trust.

Author is an Advocate practicing at Supreme Court of India. Views are personal.