Introduction
The manner in which judges are appointed to constitutional courts is not merely an administrative issue; it is a question that touches the very foundation of democracy. In India, the debate over judicial appointments has resurfaced repeatedly over the last three decades, reflecting tensions between judicial independence, executive accountability, and democratic legitimacy. The controversy has evolved through landmark judgments, constitutional amendments, legislative efforts, and ongoing institutional friction between the judiciary and the executive.
At present, India follows the collegium system for appointments to the Supreme Court and High Courts — a system created by judicial interpretation rather than explicit constitutional text. While supporters argue that it protects courts from political pressure, critics question its opacity, lack of accountability, and limited diversity. Simultaneously, fresh discussions have emerged around reforming the system, increasing representation, and even restructuring the higher judiciary to improve access to justice.
This article examines the evolution of judicial appointments in India, analyses the strengths and shortcomings of the present system, explores reform proposals, and reflects on the constitutional principles that must guide any future changes.
I. Constitutional Foundations of Judicial Appointments
The Indian Constitution outlines the broad framework for appointing judges but leaves procedural details open to interpretation.
1. Supreme Court Judges
Article 124 provides that judges of the Supreme Court are appointed by the President after consultation with such judges of the Supreme Court and High Courts as deemed necessary. The Constitution does not explicitly state who has primacy in this consultation process.
2. High Court Judges
Article 217 lays down a similar structure for High Court appointments. The President appoints judges after consulting the Chief Justice of India (CJI), the Governor of the concerned State, and the Chief Justice of the High Court.
Initially, these provisions were understood to grant significant discretion to the executive, with consultation being advisory in nature. However, over time, judicial interpretation altered this balance dramatically.
II. From Executive Primacy to Judicial Primacy: The Emergence of the Collegium
The transformation of the appointment process was not driven by legislation but by constitutional litigation. Three landmark decisions, often referred to as the “Judges Cases,” reshaped the system.
1. First Judges Case (1981)
The Supreme Court held that the executive had primacy in judicial appointments and that the opinion of the CJI was not binding.
2. Second Judges Case (1993)
This decision reversed the earlier view. The Court ruled that the CJI’s opinion, formed collectively with senior judges, would have primacy. This gave birth to the collegium system.
3. Third Judges Case (1998)
The Court clarified the structure of the collegium:
- For Supreme Court appointments: CJI + four senior-most judges.
- For High Court appointments: CJI + two senior-most judges.
This system effectively transferred appointment authority from the executive to the judiciary, with the government retaining limited scope to return a recommendation once for reconsideration.
III. Rationale Behind Judicial Primacy
The collegium system emerged from concerns that political interference could undermine judicial independence. The judiciary argued that an independent appointment mechanism was essential to protect the rule of law.
Supporters of the collegium highlight several advantages:
- Protection from Political Pressure: Judges are insulated from partisan considerations.
- Continuity of Institutional Values: Senior judges are better positioned to assess professional competence and integrity.
- Preservation of Basic Structure: Judicial independence has been recognized as part of the Constitution’s basic structure, making it inviolable.
However, while the objective of independence was achieved, the process itself gradually attracted criticism.
IV. Criticisms of the Collegium System
Over the years, debate has intensified over whether the collegium model adequately serves constitutional democracy.
1. Opacity and Lack of Transparency
Collegium deliberations are conducted behind closed doors. There is no publicly available selection criteria, no formal evaluation framework, and limited disclosure of reasons for recommending or rejecting candidates. Although recent years have seen some resolutions uploaded online, the broader process remains confidential.
2. Accountability Deficit
Because the system operates through judicial interpretation, there is no statutory framework governing its procedures. Decisions cannot be easily questioned or reviewed, raising concerns about institutional accountability.
3. Allegations of Nepotism
Critics have argued that the system tends to favour individuals with familial or professional connections within the legal community. While merit remains central, the absence of transparent benchmarks fuels suspicion of favoritism.
4. Representation and Diversity Concerns
The higher judiciary has historically exhibited limited representation of women, Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), and minorities. Although progress has been made in recent years, disparities remain significant relative to India’s social diversity.
5. Delays and Vacancies
Vacancies in High Courts and the Supreme Court persist due to delays in recommendations, government processing, and reconsiderations. Judicial backlog has become a serious challenge, with millions of cases pending nationwide.
V. The NJAC Experiment: Attempt at Reform
In 2014, Parliament enacted the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act. The NJAC proposed a six-member body including:
- Chief Justice of India
- Two senior-most Supreme Court judges
- Union Law Minister
- Two eminent persons
The objective was to create a balanced body combining judicial and executive inputs.
However, in 2015, the Supreme Court struck down the NJAC as unconstitutional. The Court held that including members of the executive could compromise judicial independence and violate the Constitution’s basic structure.
This judgment reinstated the collegium but also acknowledged the need for improving transparency within it.
VI. Renewed Debate: Reform Without Compromise
Despite the NJAC’s invalidation, discussions on reform have not subsided. Several ideas have emerged in recent years.
1. Institutionalising Transparency
One proposal suggests creating a permanent secretariat to support the collegium. Such a body could:
- Maintain data on eligible candidates
- Record reasons for selection or rejection
- Establish objective evaluation criteria
This would preserve judicial primacy while enhancing procedural clarity.
2. Enhancing Diversity
There have been calls to incorporate affirmative measures to ensure broader representation in higher judicial appointments. Advocates argue that a diverse bench strengthens constitutional adjudication by bringing varied lived experiences into decision-making.
3. Regional Benches of the Supreme Court
Another reform idea is the establishment of regional benches of the Supreme Court to improve access to justice. Currently, the Supreme Court sits only in New Delhi, making litigation expensive for individuals from distant states. Regional benches could decentralize access and reduce backlog.
4. All-India Judicial Service (AIJS)
The AIJS proposal aims to centralize recruitment for the lower judiciary, similar to the civil services model. Supporters argue that this would standardize selection and create a merit-based pipeline for future higher court judges. Critics, however, fear that it could undermine federal principles and judicial autonomy.
VII. Comparative Global Perspectives
Examining international models provides useful context:
- In the United States, federal judges are nominated by the President and confirmed by the Senate.
- In the United Kingdom, an independent Judicial Appointments Commission recommends candidates.
- In Germany, judicial appointments involve a mix of judicial and legislative actors.
India’s collegium model is relatively unique in granting near-complete control to the judiciary. The global experience suggests that hybrid models can function effectively if safeguards protect independence.
VIII. Constitutional Principles at Stake
The debate on judicial appointments ultimately revolves around four core constitutional principles:
1. Judicial Independence
Courts must be free from political influence to ensure fair adjudication.
2. Separation of Powers
Appointments must respect the balance between legislature, executive, and judiciary.
3. Democratic Accountability
Public institutions derive legitimacy from transparency and accountability.
4. Social Justice
A representative judiciary strengthens faith in constitutional governance.
Balancing these principles is complex; emphasizing one excessively may weaken another.
IX. The Way Forward
A sustainable reform model should:
- Preserve judicial primacy to safeguard independence.
- Introduce transparent procedures and measurable criteria.
- Ensure diversity without compromising merit.
- Create institutional support structures for timely appointments.
- Strengthen dialogue between judiciary and executive to reduce friction.
Rather than radical structural overhaul, incremental institutional reforms may provide a pragmatic path forward.
Conclusion
The debate on judicial appointments in India reflects the evolving nature of constitutional democracy. The collegium system was born out of legitimate concerns about executive interference, but its functioning has generated new questions about transparency and accountability. The failed NJAC experiment demonstrated the judiciary’s commitment to preserving independence, yet it also underscored the need for reform.
Ultimately, the challenge is not merely about who appoints judges but about how institutions can work together to uphold constitutional values. Any future reform must carefully balance independence with openness, autonomy with accountability, and merit with inclusivity. The credibility of India’s judiciary — and public confidence in the rule of law — depends on getting this balance right.
