On 25^th of August 2025, the Chief Justice of India B.R. Gavai led a Collegium of five Judges that recommended elevation of Justice Vipul Manubhai Pancholi (chief justice of High Court of Judicature at Patna) as the Judge of the Supreme Court of India. Additionally, the CJI-led collegium recommended names of 14 Judges for the High Court of Bombay, including Justice Raj Wakode, the nephew of the current Chief Justice of India Bhushan Gavai. As one could predict, these Collegium picks sparked a controversy in relation to transparency and legitimacy of the Judiciary in the Republic of India. The collegium system, was once again the ‘epicenter’.

Introduction

When the judiciary elevates at its ‘whims’, where a dissent by the sole woman judge on the Supreme Court holds little value, and where everything is opaque in the garb of avoiding ‘external influence’, one must ask has the judiciary picked itself as an executive while resisting executive control? A textbook case of what George Orwell meant when he said in ‘Animal Farm’, ‘all animals are equal but some animals are more than equal than others’.

This is not about ‘an uncle’ appointing a nephew, it is not the first time the Indian Judiciary has appointed from its kins‘men’. For example, the 51^st Chief Justice of India, Justice Sanjiv Khanna whose uncle was Justice H R Khanna, whose famous dissent in the infamous case of ADM Jabalpur v. Shivkant Shukla in 1976.[i]  Also, the former CJI, D Y Chandrachud who was the 50^th Chief Justice and he was the son of the former CJI, Y V Chandrachud who was the 16^th Chief Justice of India.

Scuffle between the Executive and Judiciary: Legal Background

The Supreme Court Collegium System included the Chief justice of India and the four senior-most supreme court judges, whereas the High Court Collegium is led by Chief justice of High Court and its two senior-most judges.

The Constitutional provisions for these judicial appointments are provided in Article 124 and 217 respectively. Article 124 of the Indian constitution strictly states that the Supreme Court judges are appointed by the President of India in consultation with the CJI. The executive can only raise objections or seek clarification, however, if collegium reiterates its orders, the government had to follow and comply to the same. 

The evolution of the Collegium System started by First Judges Case in 1981, where it gave primacy to executive in judicial appointments. The Second Judges case in 1993 overturned the First Judges Case, and introduced the concept of collegium, which required CJI to consult two senior-most judges of Supreme Court. The Third Judges Case in 1998, expanded collegium to include CJI and four senior-most judges. Thereafter, the NJAC- National Judicial Appointments Commission was proposed by the 99^th Constitutional Amendment Act, 2014, to replace collegium system. Its composition included CJI as chairperson, two senior SC judges, Law Minister, and two eminent ministers. Following this proposal, it was struck down by the Supreme Court in 2015, citing a violation for judicial independence and the basic structure of the Constitution.

The Current Controversy

A question on the much debated “collegium system” of selection of judges was raised upon the elevation of Justice Pancholi to the Supreme Court where he has superseded 20+ judges including women judges. It must also be observed that with his entry, the Gujrat High Court has three judges in the Supreme Court.  

Following which, in the order released by the Collegium with 4:1, Justice B. V. Nagarathna, the only women judge currently in Supreme Court dissented to the appointments to the Apex court. She argued in her dissent note that Justice Pancholi’s appointment would be “counter-productive” to the administration of justice and could undermine the credibility of the Collegium system. 

Two questions arise from the dissent, Is this is a tussle of merit vs seniority or is the elevation of judges a preferential treatment?

The reason of her dissenting opinion, noting that Justice Pancholi’s appointment was unreasonable as he ranked 57^th in the seniority list of High Court judges. She also raised concerns regarding the circumstances that prompted Justice Pancholi’s transfer. The dissent reflects the Collegium’s infidelity to the factors that it uses to make appointments of Judges to the Supreme Court.

The factors include- Seniority, where seniority of Chief Justices and senior judges in their respective High Court, as well as overall seniority of judges on an all-India level. Merit and Integrity, where the performance of judges, their merit, and the integrity of judges are taken under consideration. Regional Representation, which includes balance of representation of states by the High Courts in the Supreme Court. Diversity, which includes representations of marginalized community, minorities, gender diversity and backward segments of the society.

Therefore, the dissenting judge is the perfect example of representation beyond symbolism. Her being the only woman judge on the collegium bench shows deliberation, perspective and fairness. If her perspective is withheld or minimized, it shall perpetuate institutional suppression in the judiciary.

Critical Take:  Judiciary=Executive?

The Indian judiciary is increasingly becoming a concentrated group, functioning within a system where they are not bound by any uniform standards, not even the rules it picked for itself, of seniority, and of merit. Although the constitutional framework upholds the principle of separation of powers, this power-sharing democracy can be choked by forces that project a fatal and irresistible allure.

The proper implementation of executive outreach is necessary to sustain a welfare state, where institutions should not exist merely on paper but should function in practice, ensuring that power is not concentrated in any one branch.

In accordance with executive outreach a balanced approach should be determined. In the absence of effective executive outreach and adequate legal constraints, the judiciary risks to assume a position beyond its accountability. If the executive expands its outreach too far, it risks creating a bureaucratic despotism, where rules and procedures override constitutional liberties.

The evidence suggests that the judiciary is functioning for the sake of power itself, exercised arbitrarily, relentlessly, and with a vengeful undertone. The original purpose of the Indian judiciary was to institutionalize,  a system, where law functions as a double-edged weapon—a gentle wand in favor of fairness and a sharp sword against injustice. At present, however, neither of these ideals is being meaningfully realized.

Over decades, it has been observed that there is Power Concentration, where the Collegium has unchecked power and it has no external accountability at all.

The severe and arbitrary patterns of Nepotism and Favoritism in the Judiciary system is still same from the start, the patterns of family network withing higher judiciary is prominent.

In fact, at least 30 percent of sitting judges of the Supreme Court are related to former judges, and another 30 percent were second- or third-generation lawyers before their elevation.

Therefore, the Indian judiciary has its roots firmly embedded in the legal profession, with the black robe and the gavel often being passed down generations.

The lack of transparency resulting in opaque functioning when there is absence of publicly accessible criteria for selection, and it raises questions about the favoritism. Justice Kurian Joseph admitted that“the present collegium system lacks transparency, accountability and objectivity”. 

Hence, Lord Acton says on Power and Corruption, “Power tends to corrupt, and absolute power corrupts absolutely”

Therefore, the situations like these maybe resolved when taken with preventive measure leading to no situation of nepotism and favoritism, proper transparency and accountability.

Hence, Friedrich Nietzsche warned us in his famous quote, “whoever fights monsters should see to it that in the process he does not become a monster. And if you gaze long enough into an abyss, the abyss will gaze back into you.”

[i]  ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.