Why India Still Fights Over Judge Appointments
India’s Constitution gives the President the power to appoint judges. In practice, the decisive power usually rests with senior judges themselves. That gap between constitutional text and working practice is the reason India still fights over judge appointments.
The fight is not only about legal doctrine. It is about institutional power, public trust, caste and gender representation, government influence, and the credibility of a judiciary that regularly demands accountability from everyone else. The collegium was built to protect courts from executive capture. It now faces a different charge: that independence has come with too little transparency.
The debate over the collegium system in India sits at the intersection of judicial appointments, the NJAC verdict, Supreme Court transparency and judicial independence. Each side has a real fear. One fears judges becoming dependent on the government. The other fears a closed circle choosing its own successors with little public explanation.
The Constitution did not create the collegium
The constitutional starting point is simple, at least on paper.
For Supreme Court appointments, Article 124 says the President appoints judges after consultation with such judges of the Supreme Court and High Courts as the President may consider necessary. For appointing a Supreme Court judge other than the Chief Justice of India, consultation with the CJI is required.
For High Court appointments, Article 217 says the President appoints a judge after consultation with the Chief Justice of India, the Governor of the State, and the Chief Justice of the High Court concerned.
The key word is consultation. The Constitution does not use the word “collegium”. It does not say that the CJI and senior-most judges will form a closed panel. It does not set out a voting process. It does not require minutes to be published. It does not describe a secretariat to screen names.
The collegium emerged through judicial interpretation.
The early position gave the executive more room. In the First Judges Case of 1981, the Supreme Court treated consultation as consultation, not concurrence. That meant the executive had primacy in appointments, though it still had to consult judges.
The Second Judges Case in 1993 changed the centre of gravity. The Court held that the opinion of the Chief Justice of India, formed collectively with senior judges, would have primacy. Consultation began to function like something close to concurrence. Judicial independence became the organising principle.
The Third Judges Case in 1998, a Presidential Reference, clarified and expanded the process. For Supreme Court appointments, the CJI would consult a collegium of the four senior-most Supreme Court judges. For High Court appointments and transfers, slightly different consultation patterns applied, but the basic point remained: judicial primacy became the rule.
This is why the collegium is often described as a judge-made system. That description is accurate in a limited sense. The Court did not invent the need for consultation. The Constitution already required it. But the Court gave that consultation a meaning that shifted final influence away from the political executive and towards the senior judiciary.
That shift came from a real institutional anxiety. Courts decide cases involving the Union government, State governments, investigating agencies, tax authorities, election disputes, detention, censorship, and constitutional amendments. If the government controls who becomes a judge, it can shape the bench that will later judge its own conduct.
That risk is not theoretical. Around the world, court-packing, selective appointments, tenure pressure, and loyalty tests have been used to weaken constitutional courts. India’s collegium defenders read the Second and Third Judges Cases against that background. Their argument is that appointment power is not a routine administrative matter. It decides whether courts can say no to power.
But the same history creates a democratic discomfort. The collegium is not elected. Its criteria are not fully codified. Its reasons are often brief. Its internal disagreements are rarely visible. The public sees only the final recommendation, or sometimes just a name that moves or does not move.
That is how India reached the present contradiction: a system justified in the name of constitutional independence, but criticised for lacking ordinary standards of public accountability.
The NJAC was Parliament’s answer, and the Court said no
The strongest political challenge to the collegium came through the National Judicial Appointments Commission.
In 2014, Parliament passed the Constitution (Ninety-ninth Amendment) Act and the NJAC Act. The idea was to replace the collegium with a six-member commission.
The proposed NJAC included:
the Chief Justice of India
the two senior-most Supreme Court judges after the CJI
the Union Law Minister
two eminent persons
The two eminent persons were to be selected by a committee consisting of the Prime Minister, the CJI, and the Leader of Opposition in the Lok Sabha, or the leader of the largest opposition party where there was no recognised Leader of Opposition.
This design tried to blend judicial voice, executive participation, and a public element. It also gave any two members the power to block a recommendation. That veto became one of the central concerns before the Supreme Court.
In 2015, a five-judge bench struck down the constitutional amendment and the NJAC Act by a four to one majority. The Court held that the new system damaged the basic structure of the Constitution by weakening judicial independence. Justice J Chelameswar dissented, taking the view that the collegium had serious flaws and that participation by non-judicial members did not automatically destroy independence.
The majority’s concern was not that every non-judge would act in bad faith. It was structural. The Law Minister would sit in judgment over names for courts that regularly hear cases involving the government. Two eminent persons, both external to the judiciary, could join the minister and block a name favoured by judges. From the Court’s perspective, that created a path for executive influence over the composition of the judiciary.
The NJAC verdict did not mean the collegium was perfect. In fact, after striking down the NJAC, the Court acknowledged that the collegium needed improvement. It invited suggestions on transparency, eligibility criteria, a secretariat, and complaint handling.
That moment mattered. It showed that the Court saw two separate questions:
Question | Court’s broad answer |
Can judicial appointments be placed under a body where the executive has blocking power? | No, if that damages judicial independence. |
Does the collegium need reform? | Yes, especially on transparency and process. |
The debate since then has often collapsed these two questions into one. Critics of the collegium sometimes treat any defence of judicial primacy as a defence of opacity. Defenders of the collegium sometimes treat any demand for reform as a disguised attempt at executive control.
That framing is too narrow. India does not have to choose between a secretive collegium and a government-dominated commission. There are institutional designs between those extremes.
A court-led appointments system can publish clearer criteria. It can record reasons in a fuller form. It can create an independent appointments secretariat. It can disclose diversity data. It can explain why a candidate was recommended, why another was deferred, and why the government’s objection was accepted or rejected, subject to legitimate privacy and security limits.
The NJAC failed constitutional scrutiny because of judicial independence. That does not settle the transparency question. It only sets the boundary within which reform must work.
The data shows why transparency pressure is rising
The strongest criticism of the collegium is no longer only that it is “closed”. It is that closed systems struggle to prove fairness.
Appointments to constitutional courts are not ordinary jobs. They require legal ability, integrity, temperament, independence, and constitutional judgment. These qualities are difficult to measure with a numerical score. Still, the absence of transparent criteria makes it hard to know what weight the system gives to merit, seniority, diversity, domain expertise, regional balance, or professional background.
The available data has sharpened the debate.
The Law Ministry told Parliament that of 593 High Court judges appointed between January 2021 and January 2026, the social and gender profile included:
Category | Number of judges appointed |
Scheduled Caste | 26 |
Scheduled Tribe | 14 |
Other Backward Classes | 80 |
Minority communities | 37 |
Women | 96 |
The same disclosure means that roughly three in four appointees came from outside the listed SC, ST, OBC and minority categories. The numbers are not a complete social map. Categories can overlap. A woman judge may also belong to a Scheduled Caste, Scheduled Tribe, OBC or minority community. The data also does not tell us the pool of eligible lawyers and district judges in each category, nor does it show how many names were considered but not recommended.
Even with those limits, the data matters. It places a measurable fact beside a long-standing perception: the higher judiciary has not reflected the social breadth of India.
Representation is not a decorative concern. Courts decide questions of reservation, religious freedom, land, labour, criminal justice, gender rights, personal liberty and welfare. A judiciary does not become fair merely by mirroring population shares. But a narrow appointments pipeline can weaken public confidence, especially when reasons for selection are not visible.
The women’s representation number also needs context. Ninety-six women out of 593 High Court appointments is about 16 per cent. That figure is higher than some earlier periods, but still low when measured against the size of the legal profession and the constitutional promise of equal opportunity. The Supreme Court has had women judges, including in recent years at historically high numbers compared to its own past, but the baseline was very low.
The second data point is newer and more unusual. In 2025, the Supreme Court began publishing candidate data that included whether High Court recommendees were related to sitting or retired judges. The disclosure showed that 14 of 221 High Court recommendees had such family links, about 6 per cent.
That number cuts both ways.
For defenders of the collegium, 6 per cent may look lower than the popular charge that “judges only appoint judges’ relatives”. For critics, the real issue is that this was the first systematic disclosure of such links, and even it captures only a narrow category. It does not reveal wider networks within chambers, senior advocates’ offices, bar associations, law firms, local legal elites, or political families.
Family connection is also not proof of unfitness. A lawyer related to a judge can be excellent, independent and deserving. The problem is not the existence of a relationship by itself. The problem is the absence of a process that shows why the candidate was chosen despite a possible perception issue, and whether equally qualified candidates outside such networks received serious consideration.
This is where transparency does real work. It does not require the system to publish every confidential intelligence input or every adverse comment. It does require the institution to show that it has asked the right questions.
A better disclosure model could include:
the candidate’s broad professional background
years of practice or judicial service
main areas of work
whether the candidate comes from the Bar or service judiciary
broad diversity information, voluntarily and sensitively handled
whether there are close family links with sitting or retired judges
whether any such link was considered by the collegium
a short statement of reasons for recommendation
The statement of reasons need not read like a judgment. But it should be more than a bare conclusion. “Found suitable” tells the public almost nothing. A reasoned note can say that the candidate has substantial trial court experience, or constitutional practice, or a strong record as a district judge, or expertise in tax, criminal law, labour law, or commercial law. It can also state that integrity inputs were considered.
This matters because High Courts carry the heaviest constitutional burden in daily life. They hear bail matters, writ petitions, service disputes, land cases, criminal appeals, tax challenges and civil rights claims. For most litigants, the High Court is the main constitutional court. Who sits there is not an inside-baseball issue. It affects liberty, property, livelihood and government accountability.
The Kaul memoir episode shows the trust problem
The debate sharpened again after former Justice Sanjay Kishan Kaul wrote in his memoir that a Chief Justice considered sounding out the government on a name before the collegium had deliberated.
That claim needs careful handling. It is an allegation from one participant in the system. It is not a judicial finding. Justice D Y Chandrachud has said that such discussions are natural in the appointment process. Informal consultation between institutions is not automatically improper. A process involving the judiciary and the executive will often include communication before a file reaches its final stage.
Still, the episode matters because it exposes a central weakness: the public cannot easily tell the difference between routine consultation and premature executive signalling.
Under the collegium system, the executive is not absent. The government receives recommendations, conducts background checks through its agencies, may return a name for reconsideration, and formally makes the appointment if the process moves through. If the collegium reiterates a name, conventionally the government is expected to act, though delays have often caused friction.
So the real question is not whether judges and the government ever communicate. They do. The question is when, how, with what record, and under what safeguards.
If the government is sounded out before the collegium has even debated a candidate, critics worry that executive preference may shape the shortlist. If judges never speak to the government until after a formal recommendation, defenders of informal contact worry that avoidable deadlocks and delays may increase.
Both concerns are practical. Neither is solved by silence.
A credible process would define stages. For example, names could first be screened by a judicial appointments secretariat. The collegium could then produce a preliminary internal view. Inputs from the government could be sought in a recorded form, limited to defined issues such as integrity, security concerns and pending material. The collegium could then decide whether those inputs affect suitability. If it disagrees with the executive, it should record why, even if parts of the record remain confidential.
That would give structure to what is now often defended as convention. In constitutional institutions, convention works only when trust is high. Once trust falls, written rules become necessary.
The Kaul episode also shows why the collegium’s secrecy harms its own defenders. When the system does not explain itself in ordinary cases, every unusual claim becomes harder to assess. A closed process leaves too much room for suspicion. Did the government try to influence a name? Did the collegium resist? Did judges themselves seek executive comfort? Did a candidate lose out for a legitimate reason, or for an invisible one?
No appointment system can eliminate politics in the broad sense. Judges are appointed to exercise public power, and institutions will always have preferences. The aim is to prevent improper control, not to pretend that constitutional actors operate in a vacuum.
That is why recorded process matters. It protects candidates from arbitrary exclusion. It protects judges from unfair allegations. It protects the government from the charge that every objection is political. Most of all, it protects the public’s confidence that appointments are not being settled through private understandings.
Reform should protect independence while reducing opacity
The strongest defence of the collegium remains serious: a government should not be able to appoint the judges who will decide cases against it.
That principle has special force in India because courts routinely hear politically sensitive matters. These include investigations involving opposition politicians, challenges to laws, detention, internet shutdowns, election-related disputes, federal conflicts, and questions about citizenship, speech and protest. A court that depends on the executive for elevation may hesitate in hard cases, even without any direct threat.
Judicial independence has both external and internal dimensions. External independence means freedom from the executive and legislature. Internal independence means freedom from pressure within the judiciary itself, including pressure from senior judges who influence appointments, rosters, transfers and future elevation.
The collegium debate often focuses on external independence. The harder reform question is how to secure both.
Several reforms can do that without returning to the NJAC model rejected in 2015.
Published criteria
The Supreme Court and High Courts can adopt clear criteria for appointments. These should not become mechanical marksheets, but they can identify relevant factors. Legal ability, integrity, courtroom conduct, quality of judgments for service judges, diversity, pro bono or legal aid work, subject expertise, independence, and temperament can all be part of the framework.
Criteria also discipline discretion. If a candidate with less seniority is preferred, the collegium can explain the reason. If a candidate from an under-represented background is recommended, the note can make clear that the appointment rests on merit as assessed through the stated criteria, not tokenism.
Recorded reasons
The collegium already publishes some resolutions. The issue is depth and consistency. Some resolutions give useful detail. Others remain thin. A standard format would help.
Recorded reasons should answer three questions:
Why this candidate?
What material was considered?
Were any objections raised, and how were they addressed?
Sensitive material can be summarised or withheld where disclosure would harm privacy, safety or legitimate intelligence sources. But confidentiality should be the exception, not the general culture.
An independent secretariat
A appointments secretariat could collect data, maintain candidate records, track vacancies, prepare diversity profiles, verify basic information, record consultation stages, and support the collegium with structured material.
This secretariat should not control outcomes. It should improve the quality of information. At present, much depends on informal knowledge among senior judges. Informal knowledge can be valuable, especially about local Bar reputation. But it can also reproduce old networks and blind spots.
A secretariat would also reduce delay. Vacancy data, retirement timelines and candidate files can be prepared in advance. High Courts often function with significant vacancies, and appointment delays affect case backlogs. A better process will not solve pendency by itself, but it can reduce one avoidable pressure point.
Diversity reporting
The judiciary can publish annual diversity data for recommendations and appointments. This should include gender, broad social category where voluntarily available, Bar or service background, regional distribution, and areas of practice.
The purpose is not to impose rigid quotas through the back door. The purpose is to let the public see whether the pipeline is widening. If the pool of recommended names remains narrow, the institution should have to ask why.
Conflict and relationship disclosure
The 2025 move to disclose family links with sitting or retired judges was a useful start. It should be made routine and broader, while still respecting privacy. The system can disclose close relationships that create a reasonable perception issue. It can also state that the relationship was considered and did not decide the recommendation.
This is better than pretending that networks do not exist. The legal profession is relationship-heavy. Many lawyers train in chambers, appear before particular benches over years, and build reputations through senior advocates and local associations. A transparent system does not abolish networks. It prevents networks from becoming the hidden basis of selection.
Time limits and consequences
The executive can delay appointments by sitting on files. The collegium can also delay decisions by deferring names without explanation. Both forms of delay reduce accountability.
Clear timelines would help. If the government returns a name, it should provide written reasons within a fixed period. If the collegium reiterates the name, the appointment should follow within a defined time. If the collegium defers a name, it should record whether the deferral is due to missing material, disagreement, or reconsideration of suitability.
This would reduce the grey zone where names remain pending without a clear constitutional answer.
The real choice is not independence or accountability
India’s judge appointment debate often sounds like a binary fight. Either judges choose judges in secret, or the government gets a decisive say. That binary has kept the argument stuck.
The better question is more precise: how can India protect courts from executive capture while making judicial appointments fairer, clearer and more trusted?
The Constitution’s text created consultation. The Supreme Court’s cases transformed consultation into judicial primacy. Parliament’s NJAC tried to change that structure. The Supreme Court rejected it to preserve judicial independence. The result is the present system, where judges still choose judges, but under rising pressure to justify how they do it.
The pressure is not going away. The data on High Court appointments shows continuing concerns about social representation. The 2025 disclosure on family links shows both the value and limits of transparency. The Kaul memoir episode shows how informal processes become controversial when the public cannot see the rules.
The case for reform is strongest when it accepts the case for independence. A government-controlled system would create its own dangers. But independence cannot mean insulation from all questions. Courts ask administrators to give reasons. They test laws against constitutional standards. They require fairness from tribunals, regulators, universities, police authorities and ministries.
A judiciary that asks everyone else to explain themselves can afford to explain itself.
The next phase of reform should not reopen the NJAC in the same form and call it a solution. It should build a court-led system with published criteria, recorded reasons, diversity reporting, relationship disclosure, an independent secretariat, and enforceable timelines. That would not satisfy every critic. It would not remove every hard judgment. But it would shift the debate from personalities and suspicion to process and evidence.
For a constitutional court, that is the right direction. Independence earns public trust when it is paired with reasons. Secrecy may protect an institution for a while, but explanation protects it for longer.
