Justice In The Hands of Collegium System?

Introduction:

“ It is not just the government that has a veto; the judiciary too has it ”, the statement by former Chief Justice D.Y. Chandrachud.

In a similar vein, " I am now appealing to you to establish a suo moto bench of 11 judges of the Supreme Court to reconsider the verdicts from the Second and Third Judges' cases”, former Supreme Court judge, Markandey Katju urged in his letter to Chief Justice of India, B. R. Gavai, highlighting the weaknesses in the Collegium system of Judiciary. These statements reflect the long lasting debate about the process of judges appointing judges in the judiciary system of India.

An overview:

The Collegium system in India is the process by which judges of the Supreme Court and High Courts are appointed and transferred in the higher judiciary, the Supreme Court collegium is headed by the Chief Justice of India (CJI) and includes the four senior-most judges of the court.

The High Court collegium is led by the respective Chief Justice and the two senior-most judges of that court. The Supreme Court collegium recommends judges for Supreme Court and High Courts, appoints Chief Justices of High Courts and transfers judges across High Courts.

What the Constitution says:

Interestingly, the Indian Constitution doesn’t explicitly mention the Collegium system. Instead, it has evolved through landmark Supreme Court judgments. The judicial interpretations of the constitutional provisions provides that:

Article 124: Specifies that the judges of supreme court will be appointed by the President after consultation with the judges of supreme court. In the high court, the CJI will always be consulted and the President may deem necessary. For appointing the CJI, consultation is not required.

Article 217: States that the High Court judges are appointed by the President following consultation with the CJI, Governor of the state, and in case of a judge other than Chief justice, Chief Justice of that High Court.

Evolution through Case law:

The collegium system was established by the Supreme Court judgements, particularly the Second Judges Case(1993) and the Third Judges Case(1998).

First Judges Case(1981) - the supreme court gave primacy to executive in the judicial appointments. The role of the judiciary, including the CJI was only limited to “consultation”, and not “concurrence”.

Second Judges Case(1993) - this judgement fundamentally altered the appointment process. It overruled the first judges case and introduced the Collegium system, interpreting “consultation” with CJI actually means”concurrence”. Thus, the judiciary gained primacy.

Third Judges Case(1998) - It expanded the collegium system and stated that the consultation process requires CJI and four senior-most Supreme Court judges.

Together, these judgements shifted the balance of power in favour of the judiciary. The executive’s role is primarily limited to granting formal approval and raising objections.

National Judicial Appointments Commission (NJAC) Act (2015) - In an effort to restore balance, Parliament enacted the NJAC Act, creating a commission consisting of:

The Chief Justice of India(CJI)
2 senior-most judges of the SC
The Union law minister and,

2 eminent persons (i.e. these 2 eminent persons are nominated by a committee composed of the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the House of People or if no such Leader is there then the Leader of the single largest Opposition Party in the Lok Sabha). However the Supreme Court collegium struck down the NJAC and declared it unconstitutional, holding that it violated the principle of judicial independence enshrined in the basic structure of the Constitution.

Major Criticisms:

The collegium system has always been a debating topic, some of the major

criticisms are:

Lack of transparency and accountability: There are no formal procedures and guidelines for selecting judges, the system operates in secrecy with no publicly accessible record. The power is being concentrated within a small group, with no mechanism to hold the people responsible for their choices.

Favouritism: The system allegedly tends to favour appointing their family acquaintances relatives for senior judges and sidelining the more deserving candidates, often referred as “uncle judge syndrome”.

Lack of diversity: Women, Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), and other marginalized communities remain severely underrepresented. As of March 2025, the Supreme court has only 2 women judges out of 34 Supreme Court judges and around 110 out of roughly 754-1100 High Court Judges.

Delays and judicial vacancies: Even after collegium recommendations, the process often suffers executive delays, leading to significant vacancies in the judiciary and delay in case disposal. There are still 355 vacancies in the High Court, out of which 105 are under process between government and Supreme court, while 205 recommendations are yet to be received from the High Court collegium.

Weakening of checks and balances: The system excludes executives from the judicial appointment process, leaving no external oversight over who enters the higher judiciary. This concentration of power within a closed group of judges undermines accountability and erodes the system of institutional check.

The Way Forward: How India can improve the judicial appointment process:

Revised NJAC mechanism: A modified version of NJAC Act could balance judicial independence with accountability. Such a commission would broaden participation in the appointment process, by including judicial, executives and civil representatives, while replacing the collegium system.

Greater Transparency in Decisions: Judicial appointments must be guided by publicly available eligibility criteria, while citing the reasons for selection and non-selection, past experience records. Publishing this information would build public interest and introduce accountability and transparency.

Reforming Memorandum of Procedure (MoP): The MoP, first framed in 1999 and revised in 2015 but never adopted, states the rules and procedures for appointing supreme court and high court judges, with recommendations made by the collegium and processed by government before final approval by government. The reformed MoP would consist of representatives from executives and judiciary for decision making ensuring accountability.

Promoting diversity and inclusion: To ensure that the judiciary reflects India’s diverse society measures such as quotas for women, SC, ST, OBC and minorities should be considered. A special attention must also be given to underrepresented regions and communities and the candidates must be evaluated, not just on the basis of seniority, but also on their merit, experience, performance.

Enforce Time-Bound appointments: To address the delay in justice delivery, deadlines should be fixed for each stage of the process- the recommendation from collegium, review by government, reconsideration and final approval for the judges. Any objections raised by the government must be communicated within a specific time frame, if failing to do so, the recommendation should be deemed automatically approved without any delay.

Performance Metrics and Review: Measurable performance tracking methods can be introduced such as number and quality of judgements delivered, ability to clear case backlogs, peer evaluation and workload management.

Notes:

1. Consultation is a non-binding process, meant for gathering opinions and recommendations, but not compelled to accept them. Concurrence grants primacy and a binding effect to the CJI’s recommendation.

2. Supreme Court collegium as of May 2025-