Introduction
Few constitutional questions in independent India have generated as much sustained controversy as the method by which judges are appointed to the higher judiciary. The Supreme Court’s 2015 decision in Supreme Court Advocates-on-Record Association v. Union of India, commonly referred to as the Fourth Judges Case or the NJAC judgment, struck down the Constitution (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 with a majority of four to one. In doing so, it restored the collegium system that had been assembled, piece by piece, through judicial interpretation across three earlier constitutional decisions. The NJAC judgment is a landmark moment not only for what it decided but for what it revealed: that the judiciary was willing to invalidate a constitutional amendment passed unanimously by Parliament and ratified by a majority of state legislatures in order to preserve a mechanism of appointment that it had itself invented.
The decade since has seen that restored collegium stumble visibly. Appointments have been delayed by months and years. The Memorandum of Procedure, which was supposed to govern the process, has remained in a state of permanent negotiation between the executive and the judiciary. Individual collegium recommendations have been returned, ignored, or selectively implemented by the government. Meanwhile, the High Courts of the country carry hundreds of vacancies at any given time, burdening existing judges and denying litigants timely access to justice. The intellectual question that animates this article is whether the collegium system, as it currently operates, is capable of delivering on the constitutional promise of an independent judiciary, or whether the Supreme Court’s defence of that system has paradoxically weakened the institutional standing it sought to protect.
Legal Framework
The constitutional provisions governing judicial appointments are contained in Articles 124 and 217. Article 124(2) states that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary. Article 217(1) similarly mandates consultation with the Chief Justice of India and the Governor of the State in the case of High Court appointments.
The text of these provisions is conspicuously silent on who holds the determinative voice in the consultation process. The First Judges Case in 1981 (S.P. Gupta v. Union of India) held that the executive was not bound by the opinion of the Chief Justice. That position was reversed in 1993 by the Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India), which introduced the concept of primacy, holding that the Chief Justice’s recommendation, made in consultation with a plurality of senior judges, was binding on the executive. The Third Judges Case in 1998, rendered in response to a Presidential Reference, clarified that the collegium meant the Chief Justice and the four most senior puisne judges, and that the concurrence of a majority of them was required for a valid recommendation.
What is remarkable about this evolution is that none of it is visible in the constitutional text. The word “collegium” appears nowhere in the Constitution. The principle of primacy was constructed from the broader constitutional scheme and the importance of judicial independence, not from any explicit textual command. When Parliament sought to give this process a statutory and constitutional basis through the NJAC, the Supreme Court struck it down on the ground that it violated the basic structure of the Constitution by compromising judicial independence. The majority held that the inclusion of the Law Minister and two eminent persons in the Commission as voting members introduced an element of political influence that was constitutionally impermissible.
Judicial Developments
The NJAC judgment’s immediate aftermath was a promise of reform from within. The Supreme Court invited the government and the Bar to suggest improvements to the collegium system through the Memorandum of Procedure. What followed was a prolonged stalemate. The government submitted a draft MoP that included provisions for a secretariat, a complaints mechanism, and criteria for elevation. The collegium did not formally respond to several of these proposals, and the MoP was never finalised. By 2019 and 2020, both the government and sections of the legal academy were openly noting that the process had achieved neither transparency nor efficiency.
The tenure of Chief Justice Ranjan Gogoi, from October 2018 to November 2019, was marked by considerable institutional controversy. The collegium under his leadership approved several recommendations that observers found difficult to reconcile with publicly available information about the concerned judges. More significantly, the episode involving serious allegations made against the Chief Justice himself, and the manner in which those allegations were handled by the court, raised questions about institutional accountability that the collegium system, by its very design, is structurally ill-equipped to address. When the institution that appoints judges is also the institution that adjudicates challenges to those appointments, the conflict of interest is not incidental but structural.
Chief Justice D.Y. Chandrachud, who assumed office in November 2022, introduced meaningful procedural reforms. The Supreme Court began publishing collegium resolutions on its website, including the reasons for recommendations and, critically, the reasons for disagreeing with government objections when recommendations were reiterated. This was a significant shift from the earlier practice of near-total opacity. In 2023 and 2024, the court published detailed resolutions that explained the basis for specific elevations, addressed concerns raised by the Intelligence Bureau, and recorded the collegium’s collective reasoning. The Union government’s decision to elevate certain individuals recommended by the collegium while continuing to sit on others remained a persistent source of friction.
The Supreme Court’s contempt jurisdiction was invoked in the context of judicial appointments in a manner that generated considerable attention. In a suo motu proceeding tracking High Court vacancies, the court observed in 2021 that the government’s failure to act on collegium recommendations within a reasonable time was inconsistent with the constitutional scheme. The confrontation between the government and the judiciary over the selective processing of names reached a point where the Attorney General and Solicitor General had to address the court repeatedly on the subject.
Contemporary Issues and Analysis
The central analytical tension in any honest assessment of the collegium system is this: the system was designed to insulate judicial appointments from political influence, but it has created a different set of problems that are no less serious. The opacity of deliberations, the concentration of immense power in a small group of judges, the absence of any mechanism for external scrutiny of collegium decisions, and the systemic under-representation of women, lawyers from non-metropolitan backgrounds, and minority communities on the bench are not incidental flaws. They are structural features of a system built around peer selection within a homogeneous elite.
The data on vacancies is particularly sobering. As of early 2024, High Courts across India were functioning with over 330 vacancies against a sanctioned strength of approximately 1,114 judges. The Supreme Court itself has at various times functioned below its sanctioned strength of 34. The reasons are multiple: delays in collegium recommendations, delays in government processing, delays in the Intelligence Bureau verification, and delays in the formal presidential appointment. Each stage of the process has become a site of friction, and the absence of enforceable timelines at any stage means that friction accumulates without resolution.
The government’s selective elevation of collegium-recommended names has also introduced a subtle but consequential asymmetry. Where the government elevates some names from a collegium list while holding back others, it effectively exercises a veto without formally rejecting any recommendation. The collegium can reiterate a recommendation, and constitutional convention suggests that a reiterated recommendation is binding. But the government has, on multiple occasions, simply not acted on reiterated recommendations for extended periods. The constitutional mechanism has no answer to this; there is no provision for mandamus against the President in the exercise of appointment powers.
Comparative and International Perspective
The comparison with the United Kingdom’s Judicial Appointments Commission is instructive. The JAC, established under the Constitutional Reform Act 2005, is an independent statutory body that selects candidates for judicial office on the basis of merit through a competitive, transparent process. It includes lay members, judges, and legal practitioners. The Lord Chancellor retains a formal role in confirming or rejecting appointments but is constrained by the statutory framework from exercising that role on political grounds. The British model deliberately separates the judiciary from its own appointment process, recognising that self-appointment generates legitimacy problems even where individual appointees are excellent.
The United States model is, of course, the archetype of executive appointment with legislative confirmation. The Senate confirmation process, while deeply politicised, has the virtue of public accountability: nominees face questioning, their records are examined, and votes are recorded. The process is slow and imperfect, and ideological considerations are openly applied. But the transparency of political contestation is, in a sense, more honest than a system that claims to be purely meritocratic while operating in near-total secrecy.
India’s Law Commission, in its 230th Report, recommended a broad-based collegium with transparent criteria and a formal secretariat. The Punchhi Commission also recommended structural changes. None of these recommendations have been acted upon, partly because the judiciary has shown no interest in a reform that it did not itself initiate, and partly because the political branches have been unwilling to risk another constitutional confrontation.
Practical and Policy Implications
The vacancy crisis has direct consequences for the administration of justice. Pendency in High Courts runs into tens of millions of cases. Courts in States like Allahabad, Patna, and Calcutta routinely have fewer than half their sanctioned judges sitting. The human cost of this is borne disproportionately by those who cannot afford private dispute resolution, who rely on the civil and criminal justice system for protection of their rights, and who wait years for hearings in matters that are urgent to their lives even if they are not urgent to an overburdened bench.
The collegium system’s opacity also has implications for the public legitimacy of judicial institutions. When a judge is elevated and the public has no access to any information about how that decision was made, what criteria were applied, or what alternatives were considered, the only available inference is that the process was either meritocratic or nepotistic, with no way to distinguish between the two. This epistemic situation is bad for judicial authority. Courts derive their legitimacy not from force but from the public belief that they decide rightly and fairly. A judiciary that is perceived as self-selecting in opaque and potentially self-serving ways undermines that legitimacy over time.
Suggestions and Reforms
Any credible reform of the appointment process must begin with a constitutional acknowledgment that Articles 124 and 217, as they stand, do not actually settle the question of primacy in any textual sense. A constitutional amendment that specifies the appointment mechanism, rather than relying on judicially implied primacy, would provide more stable ground. Such an amendment could establish a statutory commission with a composition that ensures both judicial independence and some degree of democratic accountability: a majority of judicial members to protect independence, combined with independent lay members appointed by a process that is itself insulated from partisan control.
Enforceable timelines are a minimum requirement. The government should be required by law or court order to act on collegium recommendations within a specified period, with reiterated recommendations deemed accepted if not formally returned with reasons. The practice of selective processing of names must be addressed directly, either through legislative direction or through a clear Supreme Court ruling that sequential processing within a single collegium list is constitutionally required.
Transparency reforms must go further than the current practice of publishing resolutions after the fact. The criteria for elevation should be publicly stated in advance, applied consistently, and reviewed periodically. Information about shortlisted candidates need not be disclosed, but the criteria and process must be, if the system is to retain public legitimacy. The representation of women and judges from diverse professional and geographic backgrounds should be a stated objective of the appointment process, with mechanisms for monitoring progress.
Conclusion
The Supreme Court was right, in the abstract, to insist that judicial independence is a part of the basic structure of the Constitution. It was also right that the composition of the NJAC, with its legislative and executive members, carried risks for that independence. But the NJAC judgment’s restoration of the collegium came with an implicit promise that the collegium would reform itself, and that promise has been only partially kept. The transparency reforms of the Chandrachud era are welcome and meaningful. They are not sufficient.
The deeper problem is that the collegium system conflates the independence of the judiciary with the autonomy of judges from all external accountability, including accountability to the public they serve. A judiciary that appoints its own members, determines the criteria for its own membership, and operates without any mechanism of external review of those decisions is not simply independent; it is, in a meaningful constitutional sense, unaccountable. That unaccountability may protect it from political interference. It does not protect the public from the judiciary’s own institutional tendencies toward insularity, homogeneity, and the perpetuation of existing power structures within the legal profession.
The challenge before India’s legal and constitutional community is to design an appointment process that is genuinely independent of political influence while also being genuinely accountable to the constitutional values of transparency, representation, and equal access to justice. The collegium system, as it currently stands, satisfies neither condition fully. The NJAC judgment closed one door. A decade later, the room behind that door remains largely unreformed.
