India’s judiciary, often described as the guardian of the Constitution, plays a crucial role in upholding the rule of law, ensuring justice, and acting as a check on the executive and legislature. There are ~12,000 courts – 1 Supreme Court, 21 High Courts, 3,150 District Level Courts, 4,816 Munsif / Magistrate Courts, and 1,964 Magistrate II Courts. Judicial appointments in them are governed by Articles 124 to 147 for the Supreme Court and 214 to 231 for the High Courts, reflecting the centrality of an independent judiciary in the constitutional scheme.
What are the constitutional provisions regarding Judicial appointments in India? What has been the history of evolution of the present system of appointment in India?
| Constitutional Provisions of Judicial Appointment | |
| Article 124 (2) | Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for that purpose. In the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. |
| Article 217 | Every Judge of a High Court shall be appointed by the President by a warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, the Chief Justice of the High Court except in case of his/her own appointment. |
Historical Battle between Executive and Judiciary over appointments
| Colonial Rule | During the Colonial rule, the Judicial appointments were dominated by the executive branch. |
| Consitutional Debates | The framers of the Indian Constitution, were concerned about the potential for executive overreach in the appointments. They sought to create a balanced system of Judicial appointment to ensure judicial independence. Art 124(2) and Art 217 were aimed at balancing the powers of executive and judiciary in safeguarding judicial appointments. |
| Judicial Interventions | A series of rulings by the Supreme Court of India in the First, Second, and Third Judges case, led to the establishment of collegium system in India. The Judiciary gained a significant role in appointing judges, thereby reducing the executive’s influence. |
First, Second and Third Judges Case
| First Judges Case (1981) | SC in the First Judges case ruled that consultation under Art 124 does not mean concurrence. The president in not bound by the CJI’s advice. |
| Second Judges Case (1993) | SC overruled its previous decision in the First Judges case and asserted that ‘consultation‘ meant ‘concurrence‘. The CJI is required to formulate its advice based on a collegium of judges consisting of CJI and two senior most SC- judges. |
| Third Judges Case (1998) | SC expanded the collegium to a five member body to include the CJI and the four senior most judges of the court after the CJI. This further entrenched judicial control over appointments. |
NJAC Act and the Judicial Respose
| 99th Constitutional Amendment Act 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 | The NJAC was proposed to be an independent Commission to replace the Collegium System to appoint Judges to the higher Judiciary. Membersip- It was to be a six member body consisting of (a) The Chief Justice of India as the ex-officio Chairperson (b) Two senior-most Supreme Court Judges as ex-officio members (c) The Union Minister of Law and Justice as ex-officio member (d) Two eminent persons from civil society. (The eminent persons were to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of Opposition in the Lok Sabha. One of the eminent persons was to be nominated from SC/ST/OBC/minorities or women) Veto Power- The Act empowered any 2 members of the NJAC to veto a recommendation if they did not agree with it. |
| Fourth Judges Case (2015) | The Supreme Court declared the 99th Amendment Act and the NJAC Act as unconstitutional. Supreme Court struck down the National Judicial Appointments Commission (NJAC) and reaffirmed the collegium system. SC held that NJAC impinged on the independence of the Judiciary and undermined the basic structure of the Constitution. |
Why the NJAC Needs Reconsideration?
1. Judicial Primacy Retained: The NJAC preserved judiciary’s primacy (3/6 judicial members), while introducing checks and diverse inputs. Could have been “read down” to retain constitutionality instead of outright striking it down (as suggested by Fali Nariman).
2. Democratic Mandate: 543 members of Parliament voted for it (barring one dissent). Passed by 16 state assemblies indicating federal consensus and public mandate for reform.
3. Global Comparisons: UK, South Africa, and others employ mixed models involving judiciary, executive, and civil society not unilateral control.
What are the Significance and Challenges of having an NJAC?
| Significance | Challenges |
| Transparency & Accountability – Multi-stakeholder model reduces opacity. Justice Verma & ARC supported participatory appointments. | Threat to Judicial Independence – Violation of Doctrine of Stare Decisis i.e. respect for precedent. Inclusion of the executive violates separation of powers. In SC AoR Assn. v. Union of India (2015) struck down NJAC. |
| Checks nepotism- Ends judges-only coterie. Law Commission 230th Report flagged favoritism in collegium | Eminent Person Ambiguity – No clear criteria for selection. Vidhi Legal raised concern over vagueness |
| Public Trust & Legitimacy – Wider representation increases public confidence. CPR and Second ARC advocated inclusive models | Politicisation Risk – Eminent persons may be politically affiliated. PRS Legislative Research flagged possible executive packing |
| International Best Practices – Aligns with systems in UK, South Africa. | No SOP or Safeguards – NJAC lacked operational clarity. No tie-break or dispute-resolution rules defined in the Act. |
| Balanced Power Structure – Judiciary, Executive, Civil Society involved. Supported by Justice Venkatachaliah Commission (2002). | Basic Structure Violation – NJAC viewed as undermining judicial primacy |
What are the Significance and Challenges of the Collegium System?
| Significance | Challenges |
| Judicial Independence – No executive role ensures autonomy. Kesavananda Bharati Case (1973), Second Judges Case (1993). | Opaque Process – No criteria or transparency. Law Commission 214th Report & Justice Chelameswar criticized lack of records or reasons |
| Institutional Continuity – Judges best assess competence. Justice Lodha: “Judges know the court better.” | Uncle Judge Syndrome- Nepotism & favouritism in selections seen as biased. Law Commission 230th Report highlighted the “sons and nephews” pattern. |
| Stability – No political turnovers affect appointments. Third Judges Case (1998) institutionalized collegium to prevent arbitrary decisions | No Accountability – No review of decisions. Justice Kurian Joseph and others demanded internal reform and feedback mechanisms |
| Constitutional Backing – Upheld by Supreme Court. NJAC Verdict (2015): Collegium protected under Basic Structure | Vacancies & Delays – Leads to huge backlogs. 30% HC posts vacant in 2024; many files pending with Centre |
| Guards Against Politicisation – Purely judicial selection. No “political loyalty test” like in some Western democracies | Inconsistent Standards – Merit often overlooked, reversals without explanation. Justice Ruma Pal called it “mysterious and arbitrary.” |
What are the core Challenges facing the Indian Judiciary?
1. Judges Appointing Judges Dilemma: The Collegium System lacks transparency, criteria, and accountability. No formal procedure/reasons for selection/rejection are made public, which affects public trust and raises concerns of elitism and nepotism.
2. Justice Delayed is Justice Denied: Over 70,000 cases are pending before the Supreme Court, 60 lakh in High Courts, and more than 4 crore in subordinate courts (NJDG, 2024). Causes include inadequate judge strength, procedural delays, frequent adjournments, and lack of judicial infrastructure. India has only 21 judges per million population (against the Law Commission’s recommendation of 50).
3. Lack of Transparency and Accountability: Judiciary is exempt from RTI disclosure, though CJI is a public authority under RTI. There is no clear code of conduct or performance appraisal for judges, unlike bureaucrats or legislators.
4. Judicial Corruption and Ethical Deficit: Allegations against sitting judges (e.g., Justice P.D. Dinakaran, Justice Soumitra Sen, Justice Verma) reveal disciplinary gaps. Impeachment proceedings are rare and cumbersome.
5. Executive-Judiciary Tussles and Judicial Overreach: The judiciary has often been accused of encroaching into the executive’s domain, leading to friction. Cases like Arun Gopal v. Union of India (2022) raised concerns over excessive interference in policy matters (e.g., environmental regulations, administrative orders).
6. Underrepresentation and Lack of Diversity: Only 12% representation of women (as of 2024). There is poor representation from SCs/STs/OBCs and minorities, violating the constitutional spirit of social justice (Article 15, 16).
7. Insufficient Judicial Infrastructure: According to the India Justice Report 2023, many courtrooms are still without proper Wi-Fi, digitization, or sitting facilities for judges and litigants. Delayed computerization has undermined the potential of e-Courts Phase II and III.
What Should be the Way Forward?
1. Revisiting the NJAC judgment: Reconsideration by a larger Constitutional Bench, as was done in Second Judges case. Justice Kurian’s regret and other observations indicate scope for change.
2. Judicial Appointments Bill 2.0: vise NJAC to preserve independence while ensuring transparency. Include clear criteria, fixed timelines, and institutional records.
3. Public and Parliamentary Oversight: Set up a Judicial Appointments Oversight Committee to ensure due process. Strengthen Parliamentary debate on appointments.
4. Transparency via Digitization: While live-streaming may not be feasible, recorded minutes and reasoned decisions must be published.
5. All India Judicial Services (AIJS)– Several experts have argued for establishment of AIJS to improve the quality of judges in the lower Judiciary. This should be consulted and implemented post consensus among all stakeholders.
6. Judicial Appointments Secretariat: As proposed by the Justice Venkatachaliah Commission – provide logistical and data support to Collegium.
7. Time-bound Clearance Mechanism: Mandate decisions within 3 months from both Collegium and executive, to reduce pendency and avoid institutional standoffs.
| Read more– The Indian Express UPSC Syllabus- GS 2– Issues Related to Judiciary |
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