Assessing the Constitutional Validity of the Collegium System: A Legal Analysis

Assessing the Constitutional Validity of the Collegium System: A Legal Analysis

This article has been written by Parshant, a 4th year student of VMS College of Law, Batala


The Collegium System, an institution devised by the Supreme Court to safeguard against executive interference in the appointment of judges, operates within the framework of the Indian Constitution, albeit without explicit provision. Despite its intended purpose, recent shifts in democratic norms have exposed shortcomings in its functionality. The paper provides a succinct overview of the Collegium System before delving into its contemporary challenges. Additionally, it offers insights into the judicial selection processes of the UK and the USA for comparative analysis, while also considering the implications of the National Judicial Appointments Commission. Following this, a proposed course of action and a concluding statement are presented. Given the significance of the ongoing national discourse on judicial appointments, engaging in a thorough examination of this topic is strongly recommended.


The judiciary, often regarded as the third pillar of democracy alongside the legislative and executive branches, serves as the guardian of the law on behalf of the state. Its fundamental role is to uphold and safeguard the authority of the law, acting as a mediator for resolving disputes and addressing citizens’ grievances. In adherence to the principle of separation of powers, the judiciary in India is entrusted primarily with the interpretation and enforcement of existing laws rather than the creation of new ones, although this may vary in other legal systems. Over time, the jurisdiction of the judiciary has evolved, delineated by the legal framework established in the Indian Constitution, which defines the structure, functions, and interplay of powers within the administration, including the judiciary. Central to the functioning of the judiciary is its independence, crucial for upholding the rule of law, albeit posing certain challenges. At the apex of the Indian judiciary is the Supreme Court, the highest authority in the country’s legal system, followed by the state high courts, which hold original jurisdiction within their respective territories. Subordinate courts, established to handle district-level cases, constitute the lower tier of the judiciary. This paper aims to explore the Collegium system, tasked with the pivotal role of selecting judges within this framework.

Exploring the Genesis and Evolution of the Collegium System

The process of appointing justices to the Supreme Court in India is governed by Article 124(2) of the Indian Constitution. This article mandates consultation among the President, Supreme Court justices, and relevant high court justices, resulting in a lack of a standardized procedure for Supreme Court judge selection. This gap led to the implementation of the Collegium system.

Under this system, the Chief Justice of India and the four most senior Supreme Court justices are responsible for nominating and transferring judges between the Supreme Court and High Courts. Unlike legislation passed by Parliament, the Collegium system originated from Supreme Court rulings, granting it the authority to recommend candidates for appointment to the central government. However, the Collegium’s appointment process has faced challenges over time.

The evolution of the Collegium system can be traced back to Supreme Court decisions in the “Three Judges Case” between 1981 and 1998. Before 1973, it was customary for the Chief Justice to propose the most senior Supreme Court justice for appointment. However, this tradition was disrupted when President appointed Justice A.N. Ray as Chief Justice, leading to the resignation of three senior judges.

The Supreme Court later clarified the concept of “consultation” in Article 124 through the “Union of India vs. Sankalchand Seth” case, emphasizing the importance of comprehensive consultation among constitutional officials. The SP Gupta vs. Union of India case underscored the threat of executive interference in judicial independence, with the Court confirming the validity of a circular requiring authorization from Chief Ministers for additional judges.

In the Supreme Court Advocates on Record Association v. Union of India the Court granted authority to the Chief Justice of India for judge selections and transfers. The formal establishment of the Collegium system occurred through the Presidential Reference case in 1998, where a nine-judge division of the Supreme Court ruled that the Chief Justice must consult a majority of justices before suggesting judge relocations between high courts. Additionally, it clarified that the Chief Justice’s appointment advice is not binding on the government if provided without consultation.

National Judicial Appointment Commission

In 2015, both the NJAC Act and the 99th constitutional amendment, aimed at granting broader societal and political involvement in appointing Supreme Court justices, were invalidated by the Supreme Court. The NJAC was intended to replace the existing Collegium system for judge selection and was enshrined in the Constitution through the 99th Amendment Act of 2014, ratified by both the Lok Sabha and the Rajya Sabha. The accompanying NJAC Act of 2014, outlining the functioning of the NJAC, received presidential assent on December 31, 2014, following approval from 16 state legislative bodies.

Effective April 13, 2015, the Constitutional Amendment Act and the NJAC Act came into effect, introducing an impartial selection process for Supreme Court and High Court judges. The 99th Amendment Act amended Article 124 of the Constitution and introduced three new articles: 124-A, establishing the NJAC; 124-B, granting the NJAC authority to recommend candidates; and 124-C, empowering Parliament to legislate on the functioning of the NJAC. The NJAC comprised the Chief Justice of India as an ex officio member, along with the Union Minister of Justice and Legal Affairs and two senior Supreme Court justices.

Additionally, two members of civil society were to be selected by a committee consisting of the Chief Justice of India, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, with one member representing marginalized communities such as SC, ST, OBC, minorities, or women.

In the case of “Supreme Court Advocates on Record Association v. Union of India” (2015), also known as the Fourth Judges Case, the constitutionality of the NJAC law and the 99th Amendment were challenged, resulting in a landmark ruling. The Supreme Court, by a majority decision of four to one, concluded that the executive’s involvement in judge selection violated the principles of separation of powers and judicial independence. It deemed the Union Minister’s role in the NJAC as undermining the constitutional division of powers and the judiciary’s inherent autonomy. Consequently, the Collegium System persisted, though reforms were suggested in response to the verdict.

Analyzing the Draft Constitution through an Originalist Lens

The drafting of Articles 103 to 123 of the Indian Constitution focused on the establishment of the federal legislature, with Article 103 specifically addressing the creation of the Supreme Court. During the discussions in the Indian Constituent Assembly on May 24, 1949, Mr. Tajamul Hussain proposed an amendment to replace the term “chief justice” with “supreme chief justice” in Clause (1) of Article 103 to differentiate the Chief Justice of the Supreme Court from the Chief Justice of a territorial high court. This amendment aimed to ensure clarity in distinguishing between the two roles.

Mr. Krishna Chandra Sharma suggested modifying Clause (1) to ensure the timely establishment of the Supreme Court without waiting for the legislature to prescribe the minimum number of judges. Professor Shibban Lal Sharma proposed amending Clause (2) to require the President to nominate the Chief Justice of the Supreme Court, subject to approval by a two-thirds majority of both houses of Parliament, to safeguard judicial independence from executive influence.

Mr. B. Pocker Sahib advocated for a “concurring clause” to eliminate political influence in Supreme Court judge selection, emphasizing the need for judicial autonomy. Professor K.T. Shah proposed adding a “consultation clause” to ensure the Chief Justice’s consent in judge selections, aiming to mitigate potential political interference. He also suggested replacing the age restriction with a “good behavior” clause, inspired by practices in the USA and England, to ensure judicial impartiality.

Mr. Mahboob Ali Baig Sahib recommended making the Chief Justice’s consent mandatory in Supreme Court judge selections to protect against political influence. He proposed that in case of disagreement, the Chief Justice would accept an alternative nominee suggested by the President. Additionally, Shri P.K. Sen suggested including a provision for post-retirement benefits for judges to prevent their engagement in executive or political activities after leaving office.

These proposals aimed to enhance the independence and integrity of the judiciary and ensure a transparent and impartial process for Supreme Court judge selections in India.

Comparing Judicial Appointment Systems in USA and UK

As the primary judicial body established by the United States Constitution, the United States Supreme Court holds the highest authority in the nation’s judiciary. The number of justices on the Supreme Court is determined by Congress and has remained at nine since 1869, with one serving as Chief Justice. Justices are appointed by the President and confirmed by the Senate, serving lifelong terms to insulate them from political pressures. They can only leave their positions upon resignation, death, conviction by the court, or impeachment.

In contrast, the selection of judges in the United Kingdom has undergone significant reforms, particularly with the enactment of the Constitution Reform Act of 2005. Before this reform, the Chancellor, as head of the judiciary and a member of the Cabinet, held substantial power in judicial appointments and could sit in the House of Lords to hear appeals. To address concerns about the separation of powers, the Act established the Judiciary Appointments Commission (JAC), tasked with recommending judges to courts and tribunals in England and Wales. The JAC comprises laypeople, including a chairman, judges, tribunal members, solicitors, and lay justices, designed to reduce the influence of the executive and judiciary over appointments. Lay members were included to prevent bias towards already appointed judges and to shield the JAC from political interference.

Overall, the reforms in the UK aimed to ensure a fair and independent judiciary by limiting the influence of political and judicial figures in the selection process, similar to the lifetime appointments of US Supreme Court justices intended to insulate them from political pressures.

Navigating Reform: Enhancing the Collegium System for Judicial Efficiency

After careful consideration of the shortcomings highlighted by various reputable sources and members of the judiciary itself, it is evident that the current system for appointing judges requires reform. While the collegium system has served its purpose for a time, it has failed to adapt to changing circumstances and address inherent flaws. Moreover, reverting to the pre-collegium system, where the government had sole authority in appointing judges, is deemed highly unfavorable as it compromises the independence of the judiciary.

In addition to rectifying the flaws of the existing collegium system, the new system must ensure a clear separation of the judiciary from executive and parliamentary intervention. The NJAC, despite its earlier invalidation in 2015, needs to be restructured. Commission members should establish precise criteria for selecting Supreme Court justices to mitigate nepotism and ensure transparency. The commission’s operations and documentation should be accessible to the public through official government channels, allowing for scrutiny. Each member of the appointment committee should utilize a voting mechanism, such as secret balloting, to ensure impartiality. Background checks should be conducted before selecting nominees, and the tradition of appointing the most senior judge as Chief Justice should remain unchanged.

The Commission should have the authority to investigate the behavior of judges and initiate probes if necessary. In cases involving the replacement of High Court judges, consultation with the Chief Justice of the relevant High Court and additional Supreme Court judges should be mandatory. To address any internal operational flaws within the collegium, a temporary collegium akin to substitute officers should be established. Collegium members should be able to delegate their authority if needed, with the transferred member meeting the criteria set for Commission members. Any appointments made by the Collegium based on favoritism or other improper motives should be deemed invalid.

Ultimately, the legislative branch must devise a proposal that serves the interests of the general public and the integrity of the judicial system.


There is ongoing debate surrounding the effectiveness of the current Collegium structure, particularly in light of recent events involving three judges. While the Collegium System was established with noble intentions, its performance over the years has failed to meet public expectations. The government’s proposal to replace the Collegium with the National Judicial Appointments Commission (NJAC) never materialized. However, the paramount importance of maintaining the independence of the judiciary cannot be overstated, and it must be safeguarded at all costs.

If the Collegium system continues to face criticism and challenges, it may require modifications to address its shortcomings. It is crucial to uphold public trust and confidence in the judiciary, which can only be achieved through transparency and accountability in the appointment process. Any miscommunications or controversies risk eroding public faith in the judicial branch, underscoring the need for openness and accountability within the judiciary.

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