JUDICIAL APPOINTMENTS IN INDIA- EVALUATING THE COLLEGIUM SYSTEM AND THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION- A COMPARATIVE ANALYSIS

 

INTRODUCTION

The Judiciary is one of the cornerstones of the democratic system. It is entrusted with the responsibility to uphold the constitutional values, interpreting laws, resolving disputes and ensuring justice for all. It acts as a guardian of rights and protector of rule of law. In India, judiciary plays a vital role in maintaining the balance of power and system of checks and balances. Independence of judiciary is the basic feature of the Indian constitution. The process of judicial appointments in India has been a pugnacious issue, fluctuating between the need for judicial independence and the demand for transparency and accountability. The debate is centering around two systems: Collegium System and National Judicial Appointments Commission (NJAC). The judicial appointments in India are made through Collegium System. However, the lack of transparency & accountability in collegium system led to the formation of NJAC through 99^th Constitutional Amendment, which was later struck down by the Supreme court on the ground that it violates the independence of judiciary, reinstating the Collegium System. This blog explores the evolution, functioning, structure and controversies surrounding both systems and assessing their impact on judicial independence, transparency and accountability. It also provides the comparative analysis of both the systems and the way forward for ending this debate and establishing a more transparent and accountable system of appointment of judges while also ensuring independence of judiciary.

EVOLUTION OF JUDICIAL APPOINTMENTS IN INDIA

The appointment of judges in India has evolved through constitutional provisions and judicial precedents, shaped by landmark cases and legislative rules to reform the process. 

Constitutional Provision

The constitution of India governs the appointment of judges to higher judiciary I.e. Supreme court and High courts under Article 124 and Article 217 respectively. 

Article 124(2) states that every judge of the supreme court shall be appointed by the President of India after consultation with the Chief justice of India, judges of supreme court and high court as he deemed necessary.

Article 217(1) states that every judge of the High court shall be appointed by the President of India after consultation with the Chief justice of India, the governor of the state and the chief justice of high court. 

Pre-Collegium Era 

The term ‘consultation’ was not very clear according to the provisions of constitution. The President appointed judges on consultation with the Chief Justice of India and other judges. According to Article 74(1), President shall act in accordance with the advice of Prime Minister and Council of Ministers. It means that it is mandatory for the President to obey the advice of PM and his council of ministers. Therefore, initially, the executive held the significant discretion in the appointment of judges due to ambiguity in the term ‘consultation’, which at that time was not clear whether consultation means concurrence or not. 

This emerged as a significant issue which was clarified through various judgements and led to the formation of official Collegium System.

 

COLLEGIUM SYSTEM

Collegium is a Latin word, literal meaning of which is group of persons in which each member has equal power, work and authority.

Collegium system in India refers to the system of appointment and transfer of judges of Supreme Court and High Court by the incumbent judges of higher judiciary. The Collegium System is not expressly mentioned in the Constitution and is not formed by any act of Parliament. It has evolved through various judgements given in the Four Judges Cases.

Origin and Evolution

The three Judges cases are as follows:

SP GUPTA v. UNION OF INDIA,1981 (FIRST JUDGES CASE)

The Supreme Court held that the term ‘consultation’ given in Article 124 does not mean concurrence. President has exclusive power in appointment which means executive has more power. This case gave more primacy to executive in judicial appointments. It was held that the advice of judges is not binding on the President, he can reject the advice of Chief Justice for “cogent and convincing reasons”.

SUPREME COURT ADVOCATES ON RECORD ASSOCIATION v. UNION OF INDIA,1993 (SECOND JUDGES CASE)

This landmark judgement introduced the Collegium System. The court held that ‘consultation’ means ‘concurrence’ of the Chief Justice of India. It overruled the judgement of first Judges case. It also added that Chief justice will not take the decision alone, it required him to consult two other senior judges of Supreme Court. This case gave the primacy to judiciary.

IN RE SPECIAL REFERENCE NO. 1 OF 1998 (THIRD JUDGES CASE)

KR Narayan, the then President of india, asked Supreme Court’s opinion under Article 143 questioning the meaning of ‘consultation’ and whether the individual opinion of CJI qualify as consultation under Article 124 and 217. The court reaffirmed the judgement in second judges case and held that ‘consultation’ means ‘concurrence’. It expanded the collegium to CJI + 4 senior-most judges of supreme court for appointments in Supreme court. It also held that consultation should be done with whole collegium, individual decision of CJI is not enough. For appointment, collegium will be final authority & President has to obey consultation.

These landmark cases played a very important role in shaping the process of judicial appointments in India. These cases not only established the supremacy and independence of judiciary but also give birth to the collegium  system which serves as a fundamental method for appointing judges in India.

Composition

The collegium system consists of the chief Justice of India and four senior most judges of the supreme court.

The collegium system of high court consists of the Chief Justice of high Court and two other senior most judges.

Process

The process for the appointment of judges as follows:

The collegium recommends the candidate to be appointed or transferred.

 The collegium then sends are recommendation to the law minister who forward it to the prime minister to advise the president.

The law minister can rays objects or seek clarifications on the names recommended for the appointment and transfers.

If the collegium recapitulate its recommendations then the president has to approve them.

Criticism of the collegium system 

1. Lack of transparency- there is no objective criteria laid down for the appointment or transfer of judges. decisions are made behind the closed doors and the public is not made aware of the reasons.
2. Nepotism and favouritism- the obesity in the appointment of the judges raises concerns about the bias. Allegations of nepotism and favouritism has been made in judicial appointments.
3. Lack of accountability- the judiciary’s exclusive control over appointments lacks external oversight and the exclusion of executive in the appointment of judges raises concerns about arbitrariness and reduces the accountability. It violates the democratic principle of checks and balances.
4. Delay in appointments- Collegium’s slow decision making and controversies with the executive has led to significant delays in the appointments, leading to significant case backlogs.

These significant drawbacks of the collegium system has often put the system in controversies and various attempts have been made to remove or reform the collegium system.

NATIONAL JUDICIAL APPOINTMENTS COMMISSION (NJAC)

 To address the shortcomings of collegium system, the Parliament introduced the NJAC ACT,2014 through 99^th Constitutional amendment in order to introduce accountable and transparent system for appointment of judges in higher judiciary. It was a Constitutional body.

It was passed with unanimous parliamentary support and was ratified by 16 state legislatures reflecting the broad political support. 

Non judicial members also became the authority to appoint judges along with judicial members.

Structure 

The NJAC was a 6 member body consisting of:

• The CJI as the ex-officio chairman
• Two other senior most Supreme Court judges
• Union Minister of Law and Justice 
• Two eminent persons, who were to be appointed by a committee comprising the CJI, Prime Minister, and leader of the opposition in Lok Sabha 

Function

The commission was tasked with following functions:

• To recommend persons for appointment as CJI, Judge of Supreme Court, Chief justices of High Court and other judges of High Court.
• To recommend transfer of judges from one high court to another.
• To ensure that person’s recommended are of ability, merit and other criteria

Key Features

• Veto power- Any two members can veto a recommendation, ensuring consensus but also deadlocks.
• Transparency- the NJAC was mandated to establish and declare it’s procedures publicly 
• Balanced Representation – Involved the executive in the decision making process of appointment of judges.

Criticisms

• Violation of judicial independence– The inclusion of the executive in the commission raised concerns regarding executive overreach and compromised the independence of judiciary.
• Abuse of Veto power- The veto power given to any two members regarding recommendation can lead to arbitrary decisions.
• Vague criteria for ‘eminent persons’ – There was no clear criteria mentioned for appointment of two eminent persons.
• Potential for political influence – The involvement of law minister and executive could lead to politicization of appointments. It can lead to reciprocity of favours between executive and judiciary.
• Ambiguity in selection- There is no specific criteria laid down for selection of judges. The judges has to be appointed on basis of merit and ability, but the criteria for merit and ability was not mentioned.

WHY DID NJAC STRUCK DOWN?

NJAC remained in controversies since its inception. Due to continuous controversies, various writ petitions were filed against the NJAC ACT and 99^th Constitutional Amendment Act on the ground that it violates the independence of judiciary.

Thus the NJAC was struck down by Supreme Court in Fourth Judges case.

SUPREME COURT ADVOCATES ON RECORD ASSOCIATION v. UNION OF INDIA, 2015

In October 2015, the Supreme Court struck down the 99^th Constitutional Amendment Act and NJAC Act, declaring them unconstitutional. The case was decided by 4-1 ratio. The court held that it violates the Basic Structure by undermining judicial independence.

Grounds for striking down

• Violation of Independence of judiciary- It was held that Article 124A added by the Amendment do not provide adequate representation to judiciary in the matter of appointment of judges in higher judiciary. The role of executive is undermining the independence of judiciary which is a part of basic structure of constitution.
• Involvement of executive- The involvement of law minister in the commission will bring political influence in appointments. The minister has vested interest in judicial appointment. Thus, he will choose the person who favours the government, while exercising veto on those who are against. It is thus understandable that active role of executive in judicial appointments will jeopardize the independence of judiciary.
• Eminent persons- There is no clarity regarding the criteria for appointment of two eminent persons. This vagueness affects the independence of judiciary.
• Abuse of Veto power- The use of Veto power can bring down the valid appointment, leading to arbitrary decisions. The veto power allowed the non judicial members to override judicial recommendations, violating the independence of judiciary.
• Vague Criteria- According to the act, the appointments should be based on merit and ability, but the criteria for merit and ability was not mentioned in the Act.

However, it was not a unanimous decision, Justice Chelameshwar gave a dissenting opinion and found the act to be valid and constitutional. He supported the involvement of executive and two eminent persons because according to him there should be separation of power and system of checks and balances so as to ensure no institute enjoys absolute power.

To sum up, the NJAC was struck down by the majority decision of the Supreme Court on grounds of violating basic structure of Constitution and reinstated the Collegium System as the method for appointment of judges in higher judiciary.

The court also acknowledged the Collegium system’s flaws directing the government to finalize a revised Memorandum of Procedure(MoP) to enhance transparency. However, the MoP remains unresolved, reflecting ongoing tensions between judiciary and the executive.

COMPARATIVE ANALYSIS 

BASIS	COLLEGIUM SYSTEM	NJAC
Composition	CJI+ 4 other senior most judges	CJI, 2 senior Supreme Court Judges, Law minister, 2 eminent persons
Judicial Independence	Strong, judiciary led process	Compromised due to executive’s role
Transparency	Highly opaque, no formal records shared in public	Was intended to be more transparent, mandated public disclosure procedure
Accountability	Minimal, no external oversight	Enhanced through involvement of executive
Risk of bias	Nepotism, elitism	Risk of politicization due to executive and two eminent persons
Constitutional Status	Evolved through judicial pronouncement, no Constitutional basis	Constitutional body
Public Trust	Undermines by opacity and controversies	Potential to enhance trust via transparency, but untested
Outcome	Criticised, but is still used for appointments	Declared unconstitutional

 

Therefore, through this comparative analysis of both the systems we can say that both systems have their drawbacks and strengths.

WAY FORWARD

While the NJAC was a well thought reform aimed to promote transparency and accountability, it undermines the independence of judiciary and failed to address concerns around the independence of judiciary. On the other hand, the Collegium System although maintains independence of judiciary but lacks openness, accountability and credibility in the eyes of public. Hence, we need a hybrid model in which the shortcomings of both the acts are removed and a more accountable and transparent system is established for appointment.

Possible Reforms 

• Codification of collegium process: Creating a transparent and standardized process for recommendations.
• Internal Review Mechanism: Regular audits or review panels within the judiciary itself.
• Clear Criteria for appointment: A clear criterion should be devised for making appointments to higher judiciary. 
• Merit based appointments: Seniority as the basis of appointment is an old method now. It should be replaced as many able candidates are not appointed because they are not senior. The appointments should be made on basis of merit and ability to ensure more inclusivity 
• Public Disclosure: Reasoned decisions behind appointments can be published in a limited and balanced manner. The process of selection of candidate for appointment to judiciary must be made public.
• Reimagined NJAC: A reconstructed NJAC could limit the executive’s role to advisory input, grant the CJI a casting vote and clarify criteria for eminent persons to prevent politicization.
• Judicial Oversight: There should be a independent body to handle complaints and accountability without interfering in appointments.

CONCLUSION 

The Collegium System and NJAC represent competing visions for judicial appointments in India. The Collegium ensures judicial independence but is tainted by opacity, delays, and nepotism concerns. The NJAC promised accountability and transparency but was struck down for threatening the judiciary’s independence. A balanced approach—whether through a revised NJAC or an improved Collegium—must prioritize transparency, accountability, and diversity while safeguarding judicial independence. By fostering collaboration and institutional dialogue among stakeholders, India can strengthen its judiciary, reduce pendency, and restore public trust in the rule of law. India must now work toward a hybrid model that draws from the strengths of both systems—ensuring a judiciary that is not only independent but also transparent, accountable, and credible in the eyes of the citizens it serves.

REFERENCE 

1. Constitution of India, Articles 124 and 217

2. S.P. Gupta v. Union of India, AIR 1982 SC 149

3. Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441

4. In Re Special Reference No. 1 of 1998, AIR 1999 SC 1

5. Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1

6. 99^th Constitutional Amendment Act, 2014

7. D.D. BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA (LexisNexis, 26^th ed. 2023).

8. Pranav Dhawan, ‘Reform That You May Preserve’: Rethinking the Judicial Appointments Conundrum, 9 Indian J. Const. L. (2020).

9. Aparna Tiwari & Ayushi Choudhary, From 1993–2019: Has Collegium Overlived Its Utility?, 6(1) NLUJ L. Rev.  (2019).

10. Anurag Deep & Shambhavi Mishra, Judicial Appointments in India and the NJAC Judgement: Formal Victory or Real Defeat?, 3 Jamia L.J. 1 (2018).

 

Closing Credits

Author: Vishakha Saraswat (Delhi) 

"The views expressed are personal. This article is intended for educational purposes and public discourse. Feedback and constructive criticism are welcome!"