In the hallowed halls of the Supreme Court of India, silence is often more than just a requirement of decorum; it is the traditional veneer of institutional unity. However, when that silence is broken by the discordant notes of public dissent among the brother judges, the tremors are felt far beyond the corridors of Tilak Marg. The recent instances of friction within the Collegium and the public expression of dissatisfaction regarding judicial appointments have brought to the fore a crisis that has been brewing for decades. As a Senior Advocate who has witnessed the evolution of our legal landscape, I believe we must dissect the statement “When Judges Dissent, Institutions Tremble” not as a hyperbolic warning, but as a clinical diagnosis of our current judicial health.
The Anatomy of Judicial Dissent: From Bench to Boardroom
Dissent in the courtroom is the lifeblood of a thriving democracy. We celebrate the “great dissenter,” Justice H.R. Khanna, whose solitary voice during the ADM Jabalpur case remains a beacon of judicial integrity. However, a sharp distinction must be drawn between judicial dissent in a judgment and administrative dissent within the Collegium. While the former strengthens the law, the latter, when played out in the public eye, risks eroding the very foundation of the institution.
The current friction revolves primarily around the “Memorandum of Procedure” and the opacity of the Collegium system. When senior judges express disagreement over the selection or rejection of candidates for the higher judiciary, it signals a breakdown in the consultative process. This internal strife provides an opening for executive overreach, creating a vacuum where political interests might supersede merit and seniority.
The Collegium System: A Shield or a Shackle?
The Collegium system, a unique Indian innovation born out of the Second and Third Judges Cases, was designed to protect judicial independence from executive interference. The logic was sound: judges are best placed to evaluate the caliber of future judges. Yet, decades later, the system is under siege from within and without. The lack of a defined secretariat, the absence of recorded minutes for many years, and the perceived “closed-door” nature of deliberations have led to allegations of nepotism and “brother-brother” favoritism.
The Transparency Paradox
The demand for transparency is a double-edged sword. On one hand, the public has a right to know the criteria for appointing the custodians of their rights. On the other hand, a completely open process could deter high-caliber lawyers from accepting judgeships, fearing public scrutiny of their private lives and professional records. The dissent we see today is often a protest against this lack of a middle ground. When judges disagree on the “suitability” of a candidate, and those reasons remain obscured, the institutional “tremble” begins as the public starts to question the legitimacy of the selection itself.
The Executive Shadow: Pressure and Prevarication
The Indian Constitution envisions a delicate balance of power. However, the appointment process has increasingly become a site of friction between the Judiciary and the Executive. The government’s role, traditionally limited to a background check by the Intelligence Bureau and formalizing the Collegium’s recommendation, has evolved into a more assertive “veto through delay.”
By sitting on files for months or even years, the Executive effectively exercises a pocket veto. When the Collegium reiterates a name and the government continues to ignore it, the institutional authority of the Supreme Court is directly challenged. The “trembling” occurs when the judiciary appears helpless in enforcing its own constitutional mandate. Dissent within the court at this juncture—where some judges may favor a more confrontational approach while others prefer quiet diplomacy—creates a fractured front that the Executive can easily exploit.
The Impact of ‘Cherry-Picking’
One of the most significant points of contention is the government’s tendency to pick and choose names from a consolidated list sent by the Collegium. This disrupts seniority and sends a chilling message to the bar and the bench: that certain ideologies or professional stances might be penalized. Internal dissent often flares up when the Collegium fails to stand united against such selective appointments, leading to a perception that the institution is yielding to executive pressure.
Institutional Integrity and the Rule of Law
Why do we say the institution “trembles”? Because the Supreme Court is not merely a court of law; it is a court of justice and the ultimate protector of the Constitution. If the process by which its members are chosen is seen as flawed, partisan, or chaotic, the authority of its judgments is inevitably diminished. The Rule of Law relies on the mythos of an impartial, unified, and independent judiciary.
When the public sees senior judges writing letters of protest or speaking out at public events about internal fissures, the “mythos” is replaced by the reality of human fallibility and institutional frailty. This loss of public confidence is the most dangerous tremor of all. It emboldens those who wish to bypass the law and weakens the judiciary’s role as a check on the excesses of the other branches of government.
The Role of the Chief Justice as Pater Familias
The Chief Justice of India (CJI) is not just the “Master of the Roster” but also the leader of the judicial family. The management of dissent within the Collegium rests heavily on the shoulders of the CJI. A leadership that encourages robust internal debate while maintaining a unified external front is essential. However, when the leadership is perceived as being either too accommodating to the Executive or too autocratic within the Collegium, dissent becomes public and the institution suffers.
The Need for a Consultative Evolution
We must move toward a system where dissent is institutionalized rather than personalized. This means developing a more objective set of criteria for judicial appointments—factors such as reported judgments, integrity, and social sensitivity must be quantified and recorded. If a judge dissents against a candidate, the reasons should be documented within a secure but standardized framework. This would reduce the “trembling” by replacing personal friction with procedural rigor.
Lessons from History: From 2018 to the Present
The unprecedented press conference by four senior-most judges in January 2018 was a watershed moment in Indian legal history. It was the loudest “tremble” the institution had ever experienced. While it brought issues of roster management and judicial independence into the living rooms of common citizens, it also left deep scars. The current disagreements are, in many ways, an extension of the questions raised then: How do we ensure the Supreme Court remains the “last resort for the oppressed” if its internal workings are in turmoil?
Recent disagreements over the “circulation” method of seeking Collegium approval versus physical meetings may seem like procedural trivialities, but they represent a deeper struggle for the soul of the appointment process. They represent a fight for a collective, deliberative process over a top-down administrative one.
The Way Forward: Stabilizing the Foundation
To stop the institutions from trembling, we need a multi-pronged approach that addresses both the structural and the cultural issues within the judiciary.
1. Formalizing the Memorandum of Procedure (MoP)
The long-pending finalization of the MoP is a primary source of friction. A clear, transparent, and mutually agreed-upon MoP between the Judiciary and the Executive would minimize the scope for arbitrary delays and disagreements. This document must define timelines for the government to respond to recommendations and specify the grounds on which a name can be returned.
2. Establishing a Permanent Secretariat
The Collegium needs a dedicated secretariat to assist in data collection and vetting. This would move the process away from “impressionistic” evaluations to “evidence-based” selections. When dissent occurs in such a system, it is based on data, not just personal opinion, which is far less damaging to the institution’s image.
3. Balancing Seniority and Merit
While seniority provides a predictable path and prevents unseemly competition, merit must be given its due. The dissent often arises when “bright sparks” from the Bar or the High Courts are overlooked in favor of seniority alone. A transparent weightage system could help reconcile these two often-conflicting principles.
Conclusion: The Resilience of the Indian Judiciary
Despite the tremors, the Indian judiciary has shown remarkable resilience. The fact that judges feel empowered to dissent—even publicly—is, ironically, a testament to the lingering spirit of independence within the institution. However, this independence must not be squandered on internal power struggles. The “trembling” of an institution is a warning, not a finality.
As members of the legal fraternity, we must advocate for reforms that protect the dignity of the bench while demanding the transparency that a modern democracy requires. The goal is not to eliminate dissent—for a court without dissent is a court without thought—but to ensure that dissent serves to strengthen the pillars of justice rather than shake them to the ground. The Supreme Court must remain the “sentinel on the qui vive,” and for that, it must first ensure that its own house is in order. Only then can it stand firm against the pressures of the time and continue to be the final arbiter of truth and justice in our great nation.
