Collegium System of Appointing Judges: Three Judges Cases, NJAC Verdict and Reform Debate (UPSC Notes + PYQs)

Background: why appointments matter

Who picks the judges decides, over time, what kind of judiciary a country has. The framers wanted judges who were independent of the government of the day yet not a closed club accountable to nobody. They rejected two models: appointment by the executive alone, as in the UK of that time, and confirmation by the legislature, as in the United States, which they feared would politicise the Bench. Instead, they gave the formal power to the President, which in practice means the Union Cabinet, but tied it to “consultation” with the Chief Justice of India and other judges. For the first four decades the executive had the final word. Supersession of senior judges in 1973 and 1977 and mass transfers during the Emergency convinced many that executive primacy threatened independence. The collegium grew out of that experience, built not by Parliament but by the Supreme Court itself through interpretation.

What the Constitution says

Article 124(2) says the President appoints Supreme Court judges “after consultation with” judges as the President deems necessary, and the CJI must always be consulted for other judges. Article 217 has a similar rule for High Courts, adding the Governor.

The three Judges cases

The NJAC episode

The 99th Amendment (2014) and the NJAC Act set up a six-member National Judicial Appointments Commission: the CJI, two senior judges, the Law Minister and two eminent persons. In October 2015 a five-judge bench struck it down 4-1, holding that judicial primacy in appointments protects judicial independence, a basic feature.

Criticism

• Opaque: no published criteria or reasons for most decisions.
• “Judges appointing judges”, which no other major democracy follows in this form.
• Delays because the Memorandum of Procedure is still not finalised and the government sits on files.
• Low representation of women and some regions and communities.

How the collegium works in practice

For the Supreme Court, the collegium is the CJI and the four senior-most judges. For a High Court, the proposal starts with that court’s Chief Justice and two senior-most judges, then goes through the State government and the Governor to the Union Law Ministry, which adds Intelligence Bureau inputs and sends the file to the Supreme Court collegium. The SC collegium also consults judges who come from that High Court. The government may return a name once for reconsideration; if the collegium reiterates it, the government is bound to appoint, though no time limit is fixed in the Constitution. Transfers of High Court judges and Chief Justices are decided the same way. The procedural rules are set out in the Memorandum of Procedure (MoP) of 1998-99, which the Union and the judiciary have been revising since 2015 without agreeing on a final text.

Reform ideas

Publishing collegium resolutions (begun in 2017), a finalised Memorandum of Procedure with time limits, a permanent secretariat, written criteria, and greater diversity. Some argue for a revised NJAC with judicial majority.

How other democracies appoint judges

No major democracy leaves appointments entirely to sitting judges. That is the core of the criticism of the collegium, but the Indian answer has been that the executive is the biggest litigant before Indian courts, so its control must be limited.

Arguments for and against the collegium

• For: insulates appointments from political pressure; judges know the competence of lawyers and lower-court judges best; the Supreme Court held judicial primacy part of the basic structure; it has made some reforms, such as publishing resolutions and the reasons for some choices.
• Against: no written eligibility criteria; no secretariat or record of how candidates are assessed; charges of nepotism (“uncle judges”); conflict between seniority and merit; the government delays files it dislikes, so the system is neither fully judicial nor fully accountable; diversity of gender, caste and region remains limited.

Way forward for Mains

A good Mains answer avoids choosing between “judges only” and “executive only”. It can suggest: a finalised MoP with time limits for both the collegium and the government; a permanent secretariat to maintain data on candidates; published criteria covering judgments, disposal record and integrity; consultation with the Bar; and conscious attention to diversity. If a commission is tried again, the Fourth Judges case suggests it would survive only if the judicial members keep a decisive voice. The real test is whether appointments become predictable, reasoned and timely, because vacancies directly feed the backlog of cases.

Collegium System: UPSC angle

Collegium System UPSC PYQs (Prelims)

Questions UPSC has actually asked, from the official papers. Pick an option to check yourself.

Mains PYQs on this topic

Questions from the official UPSC Mains papers (2023-2026 in the Battle IAS Mains bank), newest first. Each links to a model answer.

1. UPSC Mains 2025 · GS Paper II · Q13 · 15 marks

   Discuss the evolution of collegium system in India. Critically examine the advantages and disadvantages of the system of appointment of the Judges of the Supreme Court of India and that of the USA.

   Model answer and approach

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