Author: Shreya Rajeev Warrier, student at G.J. Advani Law College, Mumbai
TO THE POINT
For decades the Indian Judiciary wielded supremacy over judicial appointments through the collegium system. While ensuring judicial appointments are free of executive intervention, the collegium system raised persistent issues related to transparency, accountability and federal balance. In recent years attention has shifted to the increasing friction between the Union government and the higher judiciary, manifested in delays in the appointment process, along with a tendency to approve selected appointments only. It has sparked debates surrounding the collegium and seniority system and whether it is an opaque, unaccountable vestige from which the judiciary should be freed, or a bulwark against a slowly encroaching executive? This article explains the relevance, judicial background, and constitutional justification for the collegium system controversy in contemporary India.
USE OF LEGAL JARGON
Collegium: The term refers to the institutional mechanism that the Supreme Court of India developed, relying on judicial interpretation by means of which the Chief Justice of India and a group of the senior-most judges as a whole recommend appointments and transfers of judges to the higher judiciary. The collegium is not mentioned in the Constitution however it became the functional method of selecting judges.
Judicial Primacy: A cardinal doctrine developed through constitutional law that places the judiciary as the sole arbiter of everything related to appointments and transfers. Its purpose is to preserve judicial independence and to limit any encroachment by the executive, as reaffirmed in the Fourth Judges Case (2015) when the NJAC was struck down.
Federalism: A fundamental structural aspect of the Indian Constitution that outlines the distribution of law-making, administration, and finances between the Union and the states. While federalism can come into play in every judicial appointment, it specifically identifies federalism with respect to High Court appointments, where both the Union and state governments are to consult each other. The more ‘delays’ or ‘unilateral action’ one of the governments take, the more it reneges a ‘federal’ structure of appointment.
Separation of Powers: A doctrine that maintains a clear division of responsibilities among the Legislature, Executive, and Judiciary, aimed at preventing the over-centralization of authority and upholding a system of mutual checks and balances.
Contempt Jurisdiction: The constitutional & statutory authority of the Judiciary, to protect its dignity, and to enforce its order. This covers some aspects of punishing the obstruction of, or interference with, the administration of justice.
ABSTRACT
The collegium system of judicial appointments in India has been institutionalised through the Three Judges Cases and is currently the pivotal feature of judicial appointments in India. Proponents of the collegium system claim that it safeguards judicial independence, while opponents believe that it is a closed-door process which lacks transparency or democratic accountability. The recent judicial appointments have intensified concerns about encroachment by the executive and secrecy due to the collegium system. The collegium system is corresponding to the executive branch’s threats using legal actions, contempt petitions and political interference. This article discusses the doctrinal, jurisprudential, and federal dimensions of the constitutional shriek that is ongoing.
THE PROOF
The simmering conflict of interest between the Union Government and the higher Judiciary over judicial appointments has come to the forefront in recent years regarding the appointment of higher-court judges. The crux of this conflict is the collegium system to safeguard judicial independence. The collegium system exists, but is opaque and operates behind closed doors. The most visible fault line is the unreasonable and rampant delays by the executive on processing the names from the collegium. Despite the Supreme Court ordering timelines on the executive legally mandated timing of complying with collegium recommendations on judicial appointments, many names have languished for months in the recommendations process, even after the collegium has reiterated them. The legality around executive non-compliance with the recommendations and interferences in judicial independence is alarming.
The situation intensified in 2023, as the solicitor associations and even state governments were contemplating other legal remedies. The Advocates Association, Bengaluru lodged a contempt petition in the Supreme Court against the executive claiming a willful disobedience of judicial orders on the timelines for appointments. The Government of Jharkhand also initiated contempt proceedings due to the prolonged delay in the appointment of its High Court Chief Justice, shifting the matter from internal deliberations to formal judicial action, highlighting the seriousness of the deadlock.
The political context has also taken a nasty turn reflecting the judicial context. Perceptions of representatives of the Government of India UN members venting their disapproval of the collegium system and bemoaning compartmentalisation, is a very recent, frequent occurrence. This has also Dr. Anandan of the European Commission announcing in Parliament that there were renewed calls to revisit the National Judicial Appointments Commission (NJAC) after the previous NJAC was struck down as an anti-constitutional undermining of the basic structure of independence of the judiciary in 2015. While new attempts to legally abolish the collegium system have only been seen at the threshold by courts and registries, none of which have allowed the matter to proceed, it is indicative of an escalating institutional anxiety regarding the status of judicial appointments at the highest level.
In addition, the collegium’s lack of transparency has drawn criticism from not only the executive but also legal scholars and members of the Bar. While the judiciary has attempted to publish resolutions of its collegium with varying success, membership selection, the criteria for selections, region and gender representation, as well as reasons for rejection of names remain opaque. The combination of these internal and external elements has created a constitutional impasse. Each side refuses to back down while facing credibility challenges.
The collegium saga is no longer a latent constitutional question – it is a live administrative crisis. But more than that, it embodies a larger debate about institutional accountability, the separation of powers, and cooperation in a quasi-federal structure. The need for a mechanism that appropriately balances the judiciary’s independence with a measure of transparency and efficiency is as pressing as it has ever been.
India’s judicial appointments controversy lies at the intersection of constitutional morality, federal governance, and public accountability. While the collegium system has insulated the judiciary from overt executive interference, its opacity and lack of representational diversity have undermined its democratic legitimacy. The executive’s persistent delays and selective clearances, with judicial insistence on primacy, have created an impasse that weakens both institutions. The way forward may lie not in choosing between the collegium and NJAC, but in designing a hybrid model that ensures independence, transparency, and institutional trust. Until then, the collegium remains both a guardian of judicial autonomy and a lightning rod for constitutional critique.
CASE LAWS
S.P. Gupta v. UOI (1981) – First Judges Case
Held that the executive had the final say in judicial appointments, with consultation being non-binding.
Supreme Court Advocates-on-Record Association v. UOI (1993) – Second Judges Case
Established the primacy of the judiciary in appointments via the collegium system.
In re Special Reference 1 of 1998 – Third Judges Case
The court held that “consultation” means that the CJI’s opinion, formed after consulting with a collegium of senior judges, carries primacy. It clarified the process for appointing and transferring judges in the Indian Judiciary.
Supreme Court Advocates-on-Record Association & Anr. vs. UOI (2015) – Fourth Judges Case
With a 4:1 majority, the Supreme Court invalidated the NJAC Act along with the 99th Constitutional Amendment, thereby restoring the collegium system as the prevailing mechanism for judicial appointments
PLR Projects Ltd. v. Mahanadi Coalfields Ltd. (2022)
The Supreme Court addressed concerns about disruptions to court proceedings due to strikes and directed the Bar Council to ensure lawyers resumed work. Supreme Court directed that collegium recommendations be processed within stipulated timelines; basis for contempt petitions filed in 2023–24.
CONCLUSION
India’s judicial appointments controversy lies at the intersection of constitutional morality, federal governance, and public accountability. While the collegium system has insulated the judiciary from overt executive interference, its opacity and lack of representational diversity have undermined its democratic legitimacy. The executive’s persistent delays and selective clearances, with judicial insistence on primacy, have created an impasse that weakens both institutions. The way forward may lie not in choosing between the collegium and NJAC, but in designing a hybrid model that ensures independence, transparency, and institutional trust. Until then, the collegium remains both a guardian of judicial autonomy and a lightning rod for constitutional critique.
FAQS
Q1. What is the collegium system?
It is an internal judicial mechanism where senior judges of the Supreme Court and High Courts recommend appointments and transfers without executive interference.
Q2. Is the collegium system mentioned in the Constitution?
No. It evolved through judicial interpretation of Articles 124 and 217 in the Three Judges Cases.
Q3. Why was the NJAC struck down?
In 2015, the Supreme Court ruled that the NJAC Act was unconstitutional as it infringed upon the Basic Structure by undermining the independence of the judiciary.
Q4. Can the collegium system be reformed without constitutional amendment?
Reform within the judiciary (e.g., publishing selection criteria, timelines) is possible without amendment. However, replacing the system entirely would require constitutional change.
Q5. Has any country faced a similar appointments crisis?
Yes. The U.S. and Pakistan have also grappled with executive-judiciary conflicts in appointments, but most democracies maintain some form of balanced judicial commissions.
