JUDICIAL APPOINTMENTS
Indian judicial system
Ankit Kuamr
2/23/20254 min read
JUDICIAL APPOINTMENTS
Judicial Appointments in India – A Comprehensive Overview
The appointment of judges to the higher judiciary is a critical process aimed at ensuring an independent, impartial, and efficient judiciary. The mechanism for judicial appointments in India has undergone significant changes over time, evolving from an executive-led process to a judiciary-dominated Collegium System. However, this system has been the subject of intense debate due to issues of opacity, lack of accountability, and allegations of nepotism. The Memorandum of Procedure (MoP), proposed in 2016, remains a contentious issue between the executive and the judiciary. Reforms have been suggested to enhance transparency, introduce checks and balances, and ensure merit-based selection while safeguarding judicial independence.
"The method of appointment of judges is of the highest importance, not only for the judiciar
but for the nation as a whole."
— Nani Palkhivala
"An independent judiciary is the bedrock of democracy. If appointments are influenced
by extraneous factors, justice is compromised."
— Justice V.R. Krishna Iyer
"Judges should not appoint judges. The system needs transparency and accountability."
— Constituent Assembly Debates (1949)
"Judicial appointments must be free from political or executive interference to ensure
impartiality."
— Justice M.N. Venkatachaliah
Constitutional Provisions Related to Judicial Appointments
The Indian Constitution provides detailed provisions regarding the appointment, tenure, and removal of judges of the Supreme Court and High Courts. These provisions are primarily found in Articles 124 and 217.
Appointment of Supreme Court Judges – Article 124(2)
Chief Justice of India (CJI):
Appointed by the President of India after consulting such judges of the Supreme Court and High Courts as deemed necessary.
Other Supreme Court Judges:
Appointed by the President after consulting the Chief Justice of India and such Supreme Court and High Court judges as deemed necessary.
Appointment of High Court Judges – Article 217
Chief Justice of a High Court:
Appointed by the President after consultation with the Chief Justice of India and the Governor of the concerned state.
Other High Court Judges:
Appointed by the President after consultation with the CJI, the Governor of the concerned state, and the Chief Justice of the concerned High Court.
These provisions indicate that the process involves a consultation mechanism between the executive and the judiciary. However, the meaning of “consultation” has been debated and judicially interpreted over time, leading to the evolution of the Collegium System.
Collegium System and Evolution Through the Three Judges Cases
The Collegium System is a judge-led appointment mechanism that emerged through judicial pronouncements rather than constitutional provisions or legislative action. It is a self-perpetuating system where the judiciary itself recommends names for judicial appointments and transfers, effectively limiting executive interference.
Composition of the Collegium
Supreme Court Collegium → Consists of the Chief Justice of India and the four senior-most Supreme Court judges.
High Court Collegium → Consists of the Chief Justice of the respective High Court and two senior-most judges of that High Court.
Final Approval → The recommendations of the High Court Collegium must be approved by the Supreme Court Collegium before being sent to the government.
Judicial Evolution of the Collegium System
First Judges Case (S.P. Gupta Case, 1981)
Held that “consultation” with the CJI does not mean concurrence.
The executive had primacy in judicial appointments and could reject judicial recommendations.
Strengthened the role of the government in appointing judges.
Second Judges Case (1993)
Overruled the First Judges Case and established that consultation with the CJI means concurrence.
The CJI’s opinion became binding on the President.
However, the CJI must consult two senior-most SC judges before making a recommendation.
Third Judges Case (1998)
Clarified that the CJI must consult four senior-most SC judges before forming an opinion on appointments.
If the Collegium reiterates its recommendation, the executive must accept it.
This ruling solidified the Collegium System, giving the judiciary the final say in judicial appointments and transfers.
Lacunae and Criticism of the Collegium System
Despite its role in protecting judicial independence, the Collegium System has been criticized for various flaws:
1. Lack of Constitutional Backing
The Constitution does not mention the Collegium System.
It was created through judicial interpretation, leading to judicial supremacy over appointments.
Critics argue that the judiciary has assumed powers beyond its constitutional mandate.
2. Opaqueness and Lack of Transparency
Collegium does not publicly disclose reasons for selecting or rejecting a candidate.
No formal eligibility criteria → Selection is arbitrary and subjective.
No public or parliamentary oversight, raising concerns about favoritism and nepotism.
3. No Checks and Balances
After the Second Judges Case, the executive’s role was minimized, violating the principle of separation of powers.
The President is bound by the Collegium’s decision, effectively removing executive oversight.
4. Failure to Fill Judicial Vacancies
The Collegium has been unable to fill vacancies in a timely manner.
Over 400 High Court positions remain vacant, causing judicial delays.
5. Administrative Burden on Judges
Judges, instead of focusing on judicial work, are involved in administrative decision-making.
No dedicated secretariat to assist in appointments → Burden increases on sitting judges.
6. Allegations of Nepotism and Favoritism
Law Commission’s 230th Report highlighted the issue of “Uncle Judges” Syndrome, where judges promote their relatives.
Allegations of bias in appointments, with personal preferences overriding merit-based selection.
Memorandum of Procedure (MoP) – 2016
To address these issues, the MoP was drafted in 2016 with new guidelines for appointments.
Key Provisions of MoP
Seniority & Merit → Preference to High Court Chief Justices for elevation to SC.
Written Justifications → If a senior judge is overlooked, reasons must be recorded.
Quota for Jurists → Up to three SC judges may be appointed from the Bar or distinguished jurists.
Committee & Secretariat → Institutional support for evaluating candidates.
Rejection Criteria → Govt proposed adding national security & public interest as grounds for rejecting Collegium recommendations.
Judiciary’s Objections
Recording reasons may harm a judge’s career prospects.
Limiting intake from the Bar to three judges is against constitutional principles.
Government’s Position
Wants the power to reject names based on national security/public interest.
Judiciary argues that this could lead to government interference.
Way Forward
Finalization of MoP → Establish a transparent selection process.
Creation of a Search-cum-Evaluation Committee (SEC) → Ensures merit-based selection.
Public Disclosure of Collegium Decisions → Reduce secrecy and opacity.
Objective Selection Criteria → Merit, integrity, and judicial performance should be the key factors.
Balanced Role for Executive → Ensure judicial primacy but allow some executive input.
Legislative Reforms → Parliament should pass a law ensuring transparency, accountability, and independence in appointments.
Conclusion
While the Collegium System safeguards judicial independence, it has become opaque, unaccountable, and inefficient. There is a need to reform the process to ensure transparency, objectivity, and accountability. A balanced approach, preserving judicial primacy while allowing limited executive involvement, is essential for upholding constitutional values and ensuring an efficient judiciary.
