The Collegium System: Opaqueness vs. Need for Reform

Introduction

The Collegium System in India is the judicial mechanism for appointment and transfer of judges in the higher judiciary- High Courts and Supreme Court. It is not established by the Constitution or legislations but has evolved through judicial interpretations in a series of Supreme Court judgements, known as the “Three Judges Case”. The Collegium System vests the power of appointments and transfers in the hands of senior judges, and not the executive with the aim of preserving judicial independence- though it has also faced criticism for a lack of  transparency and accountability.

Historical Background: Constitutional Framework of Appointments

The Constitution of India, under Articles 124 and 217, originally vested the power of appointment of judges in the President of India, acting in consultation with the judges of the Supreme Court and High Courts. Dr. B.R. Ambedkar and other members of the Constituent Assembly debated at length whether judicial appointments should be controlled by the executive, legislature, or the judiciary. Ultimately, they opted for a consultative model in which the President would make appointments in consultation with the Chief Justice of India and other judges deemed necessary. At this stage, the intent was never to exclude the executive completely, but to prevent appointments.

Evolution of the Collegium System

The journey towards the collegium was marked by three landmark judgements: The First Judges Case, The Second Judges Case, and The Third Judges Case.

• SP GUPTA VS. UNION OF INDIA (1982) THE FIRST JUDGES CASE¹

In the first judges case, several petitions were filed challenging the executive’s role in transferring judges between High Court and appointment of additional judges under article 224. The court held that the President has the final say in judicial appointments and transfers after consulting the Chief Justice of India. The judgement stated that CJI is “primus inter pares” (first among equals) and does not have overriding authority in the consultation process. It was also held that CJI’s opinion was not binding on the President. This case upheld the primacy of the executive in the appointment and transfer of judges.

• SUPREME COURT ADVOCATES ON RECORD ASSOCIATION VS. UNION OF INDIA (1993) SECOND JUDGES TRANSFER CASE^[1]

The Court overruled the First Judges Case and held that in matters of judicial appointments and transfers, the CJI must have the final say. The CJI’s opinion is binding on the President and executive if it is formed in consultation with a Collegium of senior judges. The Court interpreted “consultation” under article 124(2), 217(1) and 222 to mean “concurrence”. This means that the executive cannot override the judiciary’s opinion in the judicial appointments and transfers. The Collegium was formed in this case.

• THIRD JUDGES CASE (IN RE SPECIAL REFERENCE NO. 1 OF 1998)^[2]

In this case, an advisory opinion was given by the Supreme Court in response to Presidential Reference under article 143. It arose due to ambiguities and concerns regarding the functioning of the Collegium. A nine judge bench clarified the collegium’s composition: the CJI and four senior-most judges for Supreme Court appointments, and the CJI with two senior-most judges for High Court appointments. The executive has a limited role in judicial appointments and can only raise objections or seek recommendation. The Court reasoned that judicial independence is part of the basic structure of the Constitution, and inclusion of the executive and outsiders risked compromising it. While striking down NJAC preserved independence, it also reaffirmed the shortcomings of the Collegium.

In 2014, NATIONAL JUDICIAL APPOINTMENT COMMISSION (NJAC) was formed by the 99^th Constitutional Amendment Act. It included the CJI, two senior judges, the Law Minister, and two eminent persons. This aimed to democratize the process. It was introduced to replace the Collegium System but was struck down in Supreme Court Advocates on Record Association vs. Union of India (2016)  and was declared unconstitutional.

Functioning of the Collegium

The Collegium recommends appointments and transfers of judges. For the Supreme Court, it consists of the CJI and four senior-most judges; for High Courts, the CJI and two senior-most judges. Recommendations are sent to the President,who may return them once. If reiterated, the executive is bound to accept them. This mechanism, in theory, balances executive and judicial roles, but in practice, the judiciary has the final say.

Reasons for shift to Collegium

The shift from executive-led appointments to the collegium system in India was primarily driven by concerns over executive overreach and the need to safeguard judicial independence. This transition was shaped by historical events– most notably, the experience of judicial manipulation during the emergency era in the 1970s– and a series of landmark Supreme Court judgements

• Executive Overreach and abuse: During the Emergency (1975-77), the government’s undue influence over judicial appointments, transfers, and promotions threatened the autonomy and neutrality of the judiciary.
• Suppression of Judges: Instances like the suppression of senior judges for politically favourable candidates highlighted the risks of executive control over appointments and a lack of meritocracy.
• Loss of Public Trust: Political interference led to widespread perception challenges, eroding faith in the objectivity and fairness of the judicial appointment process.

The Collegium System objected to preserving judicial independence, preventing executive overreach, promoting objectivity and merit and safeguarding the rule of law. These reasons and objectives remain central to the ongoing debate about reforming the collegium system while retaining its foundational purpose: a fair, independent, and credible judiciary.

 Criticism of the Collegium System

1. Opaqueness and Lack of Transparency: The Collegium operates behind closed doors. Neither the criteria for selection nor the reasons for rejection are made public. This secrecy has led to allegations of favoritism, nepotism, and lack of accountability. Transparency is a key demand of reformists.
2.  Absence of Objective Criteria: There is no codified standard for evaluating merit, integrity, or seniority. Decisions vary widely, leading to unpredictability and arbitrariness. Scholars argue that absence of clear norms undermines institutional credibility.
3.  Democratic Deficit: Critics contend that unelected judges should not have exclusive control over appointments. In a democracy, executive or legislative input provides legitimacy. Judicial monopoly is seen as undemocratic and insulated from public scrutiny.
4. Delay and Vacancies: India’s higher judiciary faces chronic vacancies. Collegium deliberations often lead to prolonged delays, resulting in overburdened courts and denial of timely justice.

Defense of the Collegium

Supporters of the Collegium highlight that independence of the judiciary is paramount in a constitutional democracy. Allowing executive dominance risks politicization of appointments, as witnessed during the Emergency. Judicial primacy ensures decisions free from political pressures. The judiciary has also taken steps toward limited transparency by publishing Collegium resolutions on the Supreme Court’s website since 2017.

Impact: Professional and Regional Diversity

Empirical assessments indicate that while the collegium system has improved regional diversity among Supreme Court justices, it has aggravated professional homogeneity. Lawyers are increasingly preferred over career judges, resulting in decreased representation of service judges in the apex court and a notable concentration of power within select groups.

Need for Reform

While Collegium has prevented executive overreach, its flaws necessitate urgent reforms. Key proposal include:

1. Transparency- Publishing detailed reasons for recommendations and rejections.
2. Objective Criteria– Establishing measurable standards for merit, integrity, and seniority.
3. Diversity- Ensuring representation of women, minorities, and regional backgrounds.
4. Timeliness- Setting deadlines for processing recommendations to reduce vacancies.
5. Limited Executive Role- Allowing the executive a consultative role without compromising judicial primacy.

 Comparative Perspectives

1.  United States: Federal judges are nominated by the President and confirmed by the Senate through public hearings. This ensures democratic legitimacy but often leads to politicization.
2.  United Kingdom: The Judicial Appointments Commission, a statutory body, ensures a transparent and merit-based selection process.
3.  Canada: A Judicial Appointments Advisory Committee screens candidates, combining transparency and accountability with executive involvement.

These models demonstrate that transparency and inclusivity are possible without undermining independence. India can adapt these principles within its constitutional framework.

Judicial Independence vs Accountability

The debate is not merely structural but philosophical. Should judicial independence be absolute, or must it coexist with accountability? Critics argue that independence without accountability risks creating an insulated judiciary, detached from democratic norms. Proponents argue that excessive accountability mechanisms may weaken judicial courage and integrity. Striking a balance is the central challenge.

Case Studies Highlighting Opaqueness

Several cases illustrate Collegium’s opaqueness. The rejection of Justice K.M. Joseph’s elevation to the Supreme Court in 2018 sparked controversy, with critics alleging political bias. Similarly, the transfer of Justice Jayant Patel in 2017 raised questions of arbitrariness. Such episodes underscore the need for codified procedures and transparency.

Public Perception and Trust

Public trust in the judiciary is critical. An opaque appointment system can erode confidence, even if outcomes are fair. Transparency in decision-making fosters legitimacy and reinforces the judiciary’s role as a moral authority.

Conclusion

The Collegium system is both a protector and a prisoner of its own design. While it has safeguarded judicial independence, it suffers from opaqueness and lack of accountability. The NJAC’s failure shows that reforms must be carefully balanced, ensuring independence while enhancing transparency. The way forward lies not in dismantling the Collegium but in reforming it. By adopting objective criteria, ensuring diversity, and institutionalizing transparency, India can create a judicial appointments system that is independent, accountable, and democratically legitimate.

The debate between opaqueness and the need for reform is therefore not binary—it reflects the tension between independence and accountability in a constitutional democracy. As the judiciary continues to command immense public faith, reforming the Collegium system becomes essential to preserve its credibility and constitutional role.

References

^[1] AIR 1994 SC 268

^[2] AIR 1999 SC 1