Authored By: Manshi Raj
Usha Martin University Ranchi Jharkhand
Abstract :
The process of appointing judges in India has been a topic of discussion and controversy. While the Constitution originally left the executive with a dominant role in this process, the collegium was instituted via the Judges Cases, whereby judges appoint judges. To be clear, while a collegium is commonly viewed as a means to protect the independence of the judiciary, it is also regularly characterized as opaque and accountable to the public. Meanwhile, Parliament has attempted to solve this accountability dilemma by introducing the National Judicial Appointments Commission (NJAC), but this was declared unconstitutional by the Supreme Court in 2015. This paper considers the good, bad, and unique features of both a collegium, and a commission, compares them to approaches elsewhere in the world, and describes possible changes and reforms. Finally, the article argues that the best way forward for appointments of judges in India is to ensure independence, while also adding transparency and accountability.
Keywords: Judicial Appointments, Collegium System, National Judicial Appointments Commission (NJAC), Judicial Independence, Transparency, Accountability, Judges Cases, Basic Structure Doctrine, Judicial Reforms.
Introduction :
The judiciary is frequently referred to as the backbone of democracy as it safeguards people’s rights and upholds the rule of law. For the judiciary to remain impartial and strong, it must be free from external influences, in particular from the executive and the legislature. One of the most important factors affecting judicial independence is the method used to appoint judges. If judges are not appointed impartially, questions will be raised regarding the legitimacy and effectiveness of the entire legal framework.
In India, the subject of judicial appointments has been extensively discussed. There is a collegium system in which judges appoint judges thereby preserving judicial independence. There is also the National Judicial Appointments Commission (NJAC) promoted to inject transparency and wider participation into the process, albeit it was subsequently declared unconstitutional by the Supreme Court. The ongoing conflict provides the opportunity to ascertain which system best serves India. The aim of this article is to take both systems, analyze their advantages and disadvantages, and offer ideas for reform in the future.1
Historical Evolution of Judicial Appointments :
The Constitution of India sets out the mechanism for the appointment of judges through Article 124 (for judges of the Supreme Court) and Article 217 (for judges of High Courts). The articles state that the President appoints judges in consultation with the Chief Justice of India (CJI) and other judges (if required). In the initial years of the Republic, this was taken to mean that the executive had the last word on appointments and the CJI had a consultative role only.
In this period from the 1950s through to the 1970s, this practice cemented the role of the executive as the dominant player in the process. For instance, during the Emergency (1975–77), appointments and transfers were often perceived to be influenced by political and extraneous factors, and this raised some serious questions regarding judicial independence. This led to a number of challenges in the Supreme Court.
The matter was resolved in the “Judges Cases trilogy.” In the First Judges Case (1981), the Court emphasized executive primacy. In the Second Judges Case (1993), however, the Court also shifted power to the judiciary, creating a collegium, which was a mechanism where the CJI and senior judges advised the executive about appointments. Then, in the Third Judges Case (1998), the Court expanded the collegium to include the CJI and four senior-most judges of the Supreme Court.
Eventually, the collegium began to resemble a self-appointing mechanism and placed the judiciary in complete charge of appointments and influence over the executive.2
The Collegium System :
The current process of appointing judges in India is done by way of the collegium system. It is formed through the judicial decision, instead of having been established by the Constitution. For appointments to the Supreme Court, the collegium is made up of the Chief Justice of India (CJI) and four other judges in seniority order. For appointments concerning a High Court, the CJI and two other judges in seniority order also make up the collegium, but there are involved with judges from the High Court in question.
The process begins with the collegium recommending names for appointment. The government may return the recommendation once for reconsideration, but if the collegium re-recommends that person, the recommendation is binding on the government. This implies that the decision is ultimately made by the judiciary, not the executive.
The main virtue of this process is that it engages safeguarding independence of judiciary by minimizing political involvement in the appointment. For example, unlike the Emergency era, when there was misuse of executive authority and direct executive control over the judiciary was used to undue the judicial independence, the process under the collegium protects the judicial selection process afforded by placing a power of appointing judges in the hands of judges.
A system, however, accountable for garnering criticism is the one of much acclaim. The biggest issue here is somewhat a black box approach where there are no fixed criteria for choosing candidates or publicly explaining the decisions taken. In the mind of the common man may arise the question of favoring nepotism whereby relatives of judges or elder lawyers are preferred. Moreover, given that the process remains an internal matter, it does not entertain accountability toward the parliament or the public. So, while protecting independence, this collegium system in turn raises questions of transparency and fairness.3
The NJAC and Commission Debate :
Parliament had passed the 99th Constitution Amendment and NJAC Act (2014) to work on the ambiguities of the collegium. The NJAC consisted of the CJI, two senior Supreme Court judges, the Law Minister, and two eminent persons. The underlying purpose was to inject transparency and wider appellate participation, checks, and balances in the appointments of judges.
However, the Court, in 2015, in Supreme Court Advocates-on-Record Association v. Union of India, struck down the NJAC finding the same unconstitutional because it jeopardized judicial independence, which forms part of the basic structure of the Constitution. 4
The judgment attracted criticism against the judiciary, with arguments that it was resisting reforms and desired to cling to its power. Other countries, however, have different models: the Judicial Appointments Commission of the UK strives for independence with transparency, whereas in the US, judges are appointed by the President but sit in gainful confirmation before the Senate. These models hence establish that independence is possible alongside accountability.5
Collegium vs Commission: The Dilemma
The debate over judicial appointments is governed by a clear opposition between independence and accountability. The collegium system is praised for insulating the judiciary from executive control, so that judges are appointed free of political pressure. However, it has glaring faults with the manner in which its decisions are non-transparent, selection criteria are absent, and it has no answerability to the people or Parliament.
In contrast, a commission-type model would allow checks and balances by virtue of having members outside the judiciary. There is an opportunity for greater inclusivity, objectivity, and transparency in the appointment process. However, this however runs the danger of executive interference or politicization, where appointments will serve ruling governments rather than merit.
Consequently, this creates a dilemma for India: a collegium, while protecting de facto independence, weakens accountability; and a commission would increase the latter but with the threat of possible dilution of de facto independence. So, the real challenge will be in coming up with a neat balance that actually safeguards both.6
Recent Developments and Reforms Suggested :
In recent years, Tensions between the executive and judiciary have frequently arisen in recent years, particularly in relation to the delays in confirming collegium proposals. These disagreements show how urgently improvements are needed. According to experts, the collegium should establish transparent and unambiguous rules for appointments and disclose the selection criteria and rationale to the public. A hybrid paradigm is another suggestion, in which accountability is ensured by limited external scrutiny while maintaining judicial primacy. Additionally, others advocate using independent bodies or parliamentary committees in an advising capacity without granting them appointment authority. A compromise between preserving judicial independence and boosting public confidence via more transparency could be achieved by such measures.7
Conclusion :
A reformed collegium or a hybrid model that maintains judicial primacy while introducing clear guidelines, limited oversight, and public accountability would be the ideal way forward. This would strengthen both the independence of judges and public confidence in the judiciary. As a guiding principle, “Judicial independence must remain non-negotiable, but transparency and accountability are equally essential for public faith in justice.” Judicial appointments are essential for maintaining a strong and independent judiciary, which is the foundation of democracy. The NJAC offered an alternative approach, aiming for wider participation and checks, but was overturned due to concerns of executive overreach.
Reference(S):
1“Rethinking Judicial Appointments: Collegium vs. Commission” (PRS Legislative Research) <https://prsindia.org/theprsblog/rethinking-judicial-appointments-collegium-vs-commission?page=16&per-page=1> accessed September 29, 2025.
2 Vanshika Kapoor, “An Overview of NJAC Vis-a-Vis Collegium System w.r.t the Indian Judiciary” (iPleaders, March 26, 2024) <https://blog.ipleaders.in/an-overview-of-njac-vis-a-vis-collegium-system-w-r-t-the-indian judiciary/> accessed September 29, 2025.
3 Admin, “Supreme Court Collegium System and National Judicial Appointments Commission (NJAC)” BYJU’S (July 16, 2016) <https://byjus.com/free-ias-prep/collegium-system/> accessed September 29, 2025.
4 Prashant Gupta, “Supreme Court Advocates on Record Association vs. Union of India (1993)” (iPleaders, September 22, 2024) <https://blog.ipleaders.in/supreme-court-advocates-on-record-association-vs-union-of-india/> accessed September 29, 2025.
5admin, “NJAC vs. Collegium: Decoding Judicial Appointments in India” (LexisNexis Blogs, August 21, 2025) <https://www.lexisnexis.in/blogs/njac-vs-collegium-system/> accessed September 29, 2025.
6“Collegium System of Judicial Appointments in India” (Drishti IAS) <https://www.drishtiias.com/daily updates/daily-news-analysis/collegium-system-of-judicial-appointments-in-india> accessed September 29, 2025.
7“Why Did the SC Strike down the NJAC Act in 2015?” (Supreme Court Observer, April 4, 2025) <https://www.scobserver.in/journal/why-did-the-sc-strike-down-the-njac-act-in-2015/> accessed September 29, 2025.
