The Invisible Hand of Justice: Judicial Appointments in India
The recent recommendation of Justice Surya Kant as the next Chief Justice of India has once again highlighted the opaque Collegium system, debates over NJAC, and proposals like All India Judicial Service — all of which lie at the heart of India’s struggle to balance judicial independence with transparency and accountability.
Introduction
Judicial appointments in India are often described as the “invisible hand of justice” because they shape who interprets the Constitution and laws, yet the process itself is not very visible to the public. The appointment of the Chief Justice of India (CJI) and judges of the Supreme Court and High Courts decides the future course of rights, accountability, and rule of law. While the Constitution gives the President the formal power to appoint judges, the actual process is today controlled by the Collegium system, a judge-led mechanism that has evolved through Supreme Court judgments. This has led to intense debates about judicial independence, transparency, and democratic accountability.
Context & Background
Under Article 124(2) of the Constitution, judges of the Supreme Court are appointed by the President after 'consultation' with judges of the Supreme Court and High Courts. Over time, the Supreme Court reinterpreted this in three landmark cases (called the First, Second, and Third Judges Cases), moving from an executive-led model to a judiciary-dominated Collegium system. The Collegium for the Supreme Court consists of the CJI + four senior-most judges. For High Courts, it is the CJI + two senior-most judges. There is no detailed mention of the Collegium in the Constitution; instead, it evolved through judicial interpretation. The National Judicial Appointments Commission (NJAC) was an attempt by Parliament and states to create a more broad-based body including judges, the Law Minister, and eminent persons. But in 2015, the Supreme Court struck down the NJAC as unconstitutional, restoring the Collegium system. Meanwhile, new ideas like an All India Judicial Service (AIJS) are being discussed to make the lower judiciary more diverse and merit-based.
Key Points
- •Constitutional Basis of Appointments: Under Article 124(2), the President appoints Supreme Court judges, including the Chief Justice of India. For beginners: the President signs the appointment, but does not independently choose the name.
- •Memorandum of Procedure (MoP): The MoP is an executive document that sets out the practical steps of how appointments are recommended, processed, and finalised. It is not part of the Constitution, but guides practice.
- •Appointment of Chief Justice of India (CJI): Traditionally, the senior-most judge of the Supreme Court is appointed as CJI. The government writes to the outgoing CJI about a month before retirement, asking for a recommendation. The CJI recommends the senior-most eligible judge, the Law Ministry processes it, the Prime Minister advises, and the President issues the appointment order.
- •Appointment of Other Supreme Court Judges: The Supreme Court Collegium (CJI + four senior-most judges) recommends names based on merit, integrity, seniority, and regional representation. These are sent to the government, which can seek clarifications or return a name once, but if the Collegium reiterates, conventionally the appointment must be made.
- •What is the Collegium System? It is a judge-led system for appointing and transferring judges in the higher judiciary. It is not written in the Constitution or a law passed by Parliament, but evolved through Second Judges Case (1993) and Third Judges Case (1998). The idea is to keep the executive at arm’s length to protect judicial independence.
- •Arguments in Favour of the Collegium: It is seen as a shield for judicial independence, preventing political interference in appointments. Judges, who understand the profession best, select those with proven competence, integrity, and experience. Over time, some reforms like disclosure of Collegium resolutions and bringing the CJI’s office under RTI have marginally increased transparency.
- •Flaws in the Collegium System: Critics highlight lack of transparency, no clear criteria, and no external checks. Decisions are taken behind closed doors, minutes are rarely recorded or published, and allegations of “Uncle-Judge syndrome” and favouritism are common.
- •Impact of Opacity: Exclusion of the executive, bar associations, and civil society from any formal role has led to perceptions that a small judicial elite controls appointments. The system has also failed to appoint any “distinguished jurists” directly to SC, despite provision in Article 124.
- •NJAC as an Alternative: The National Judicial Appointments Commission was created by a Constitution amendment to replace the Collegium. It included CJI + 2 senior judges + Law Minister + 2 eminent persons. It aimed to balance independence with accountability, but was struck down in 2015 on the ground that it violated the Basic Structure (judicial independence).
- •All India Judicial Service (AIJS): Proposed as a civil-services-like exam for recruiting judges at the lower level, to improve merit, diversity, and representation (especially of women and marginalised communities). The President and many experts have supported it as a way to make the judiciary more inclusive.
- •Global Comparisons: Other democracies involve a mix of executive, legislature and independent commissions in judicial appointments (e.g., USA Senate confirmation, UK Judicial Appointments Commission, Germany’s legislative involvement), showing that multiple models exist to balance independence and accountability.
Key Features of the Collegium System
| Aspect | How it Works in India | Bookmark |
|---|---|---|
| Constitutional Basis | Not directly mentioned in the Constitution; evolved through Supreme Court judgments (Second & Third Judges Cases). | |
| Decision-Makers | For SC: CJI + four senior-most judges. For HC appointments/transfers: CJI + two senior-most SC judges. | |
| Role of Executive | Can seek clarification or return a name once, but must generally accept Collegium’s reiterated recommendation. | |
| Transparency | Meetings are closed-door, limited records; some resolutions are now published but criteria remain unclear. | |
| Accountability | No external oversight body; RTI does not fully apply to deliberations; no formal appeal mechanism. |
Collegium vs NJAC: A Snapshot
| Feature | Collegium System | NJAC (Struck Down) | Bookmark |
|---|---|---|---|
| Composition | Only judges (CJI + senior judges). | Judges + Law Minister + 2 eminent persons. | |
| Constitutional Backing | Judge-made through interpretation. | Created by 99th Constitutional Amendment (later invalidated). | |
| Aim | Protect judicial independence. | Balance independence with accountability and broader inputs. | |
| Criticism | Opaque, elitist, alleged nepotism. | Feared to compromise independence; struck down as violating Basic Structure. |
Global Models of Judicial Appointments
| Country | Model | Key Feature | Bookmark |
|---|---|---|---|
| USA | President nominates, Senate confirms. | Strong legislative oversight; highly politicised confirmation process. | |
| UK | Independent Judicial Appointments Commission. | Merit-based, transparent process with lay participation. | |
| Germany | Judges appointed by executive and legislature jointly. | Balanced representation and cooperative federalism. | |
| Canada | Executive appoints after consulting bar and advisory bodies. | Professional evaluation of merit and integrity. |
Related Entities
Impact & Significance
- •Judicial Independence: A judge-led appointment system like the Collegium protects the judiciary from direct political control. This is crucial in a democracy where courts often review laws, executive orders, and actions of those in power.
- •Quality of Justice: Who becomes a judge directly affects how fairly and efficiently justice is delivered. If competent, ethical, and diverse judges are appointed, people’s trust in the judicial system increases.
- •Public Trust & Legitimacy: A transparent and fair appointment system strengthens public faith in courts. Conversely, perceptions of favouritism or bias harm the judiciary’s moral authority.
- •Diversity & Representation: Appointment practices impact the representation of women, SC/ST/OBC, minorities, and regionally diverse candidates in higher judiciary. Currently, women and marginalised sections are severely under-represented at the Supreme Court level.
- •Balance of Power: Appointment mechanisms shape the separation of powers between the executive, legislature, and judiciary. Too much control by one organ can upset this balance.
- •Future of Reforms: Debates around NJAC, AIJS, and MoP reforms will determine how India modernises its judicial system while preserving core principles of independence and fairness.
Challenges & Criticism
- •Opacity of the Collegium: Absence of clear criteria, lack of recorded reasons, and secrecy of deliberations make the process look arbitrary to the public.
- •Uncle-Judge Syndrome & Nepotism: Allegations that relatives of judges or powerful lawyers are favoured over equally or more deserving candidates, damaging the perception of meritocracy.
- •Lack of Diversity: Very low representation of women, marginalised castes, minorities, and first-generation lawyers in higher judiciary. No woman has ever become CJI till date.
- •Limited Accountability: Collegium decisions cannot be easily challenged; RTI does not fully cover its discussions; Parliament has no direct role, and there is no independent oversight body.
- •Executive–Judiciary Tension: Delays in approving Collegium names, selective acceptance, or withholding appointments create friction and affect vacancies in courts.
- •Striking Down NJAC: Although NJAC was passed almost unanimously and ratified by many states, the Supreme Court struck it down. Critics call this judicial overreach, arguing that the judiciary protected its own power.
- •No Institutional Secretariat: Collegium lacks a formal secretariat or full-time staff to research candidate profiles, handle data, and maintain records. This increases dependence on informal inputs.
- •Backlog & Pendency: Vacancies in courts due to delayed appointments worsen case backlogs, slowing justice delivery and undermining the phrase ‘justice delayed is justice denied’.
Future Outlook
- •Reform the Memorandum of Procedure (MoP) to clearly lay down criteria for appointments (merit, integrity, diversity, seniority, representation).
- •Establish a permanent secretariat to assist the Collegium with data, research, and record-keeping, improving consistency and rational decision-making.
- •Increase transparency by publishing reasons for selection/rejection in a structured format, while protecting genuinely sensitive information.
- •Revisit models like NJAC with safeguards to prevent executive overreach, possibly including a reformed multi-stakeholder commission with strong judicial primacy but better accountability.
- •Implement All India Judicial Service (AIJS) to ensure merit-based, diverse recruitment in the lower judiciary, especially from under-represented regions and communities.
- •Promote diversity targets (not rigid quotas) for women, SC/ST/OBC, minorities, and differently-abled candidates in higher judiciary.
- •Encourage regular dialogue between judiciary, executive, bar, and academia on sustainable reform of judicial appointments, learning from global best practices.
- •Strengthen training and ethics frameworks for new judges to ensure that better appointment processes are matched by high standards of judicial conduct.
UPSC Relevance
UPSC
- • GS-2: Structure, organisation and functioning of the judiciary; appointments to higher judiciary; separation of powers.
- • GS-2: Issues of transparency, accountability, judicial overreach, and independence of judiciary.
- • Essay: Judicial independence vs democratic accountability; transparency and ethics in public institutions.
- • Ethics (GS-4): Impartiality, objectivity, and integrity in judicial appointments.
Sample Questions
Prelims
With reference to the Collegium System in India, consider the following statements:
1. It is explicitly provided for in the Constitution of India.
2. It consists only of judges of the Supreme Court.
3. It evolved through Supreme Court judgments rather than parliamentary law.
4. It recommends names for appointment and transfer of judges in the higher judiciary.
Answer: Option 2, Option 3, Option 4
Explanation: The Collegium is not mentioned in the Constitution (so 1 is incorrect). It is a judge-led body (2, 3, 4 are correct).
Mains
“The Collegium System has protected judicial independence but failed to ensure transparency and accountability.” Critically examine this statement in the context of recent debates on NJAC and proposed reforms such as AIJS.
Introduction: Judicial appointments in India are central to the independence, credibility, and effectiveness of the judiciary. The Collegium System, created by Supreme Court judgments, has been praised for insulating appointments from political influence, but criticised for opacity and lack of accountability.
Body:
• Role in Protecting Independence: Reduced executive control; prevented misuse of appointments during times like the Emergency; upheld as part of Basic Structure in the NJAC judgment.
• Concerns and Criticisms: Opaque decision-making, alleged nepotism, lack of diversity, absence of written criteria, no institutional secretariat.
• NJAC Debate: NJAC sought a multi-stakeholder mechanism; struck down for threatening independence; criticism of judicial overreach and self-preservation.
• Reform Options: Improve MoP, create secretariat, partial transparency, reimagined NJAC with safeguards, AIJS for lower courts, diversity and merit as core values.
Conclusion: A balanced reform must preserve the core of judicial independence while infusing transparency, representation, and institutional accountability into the appointment process.