Judicial Appointments In India - A Comparative Analysis Of The Collegium System And The NJAC

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:25:04.769276+00:00

Updated: 2026-08-26T17:10:55.918+00:00

JUDICIAL APPOINTMENTS IN INDIA: A COMPARATIVE

ANALYSIS OF THE COLLEGIUM SYSTEM AND THE NJAC

Thanmaya Edula Reddy, School of Law, Christ (Deemed To Be University)

ABSTRACT

The Indian judicial appointment system, in particular the Collegium System, has been a subject of significant debate due to concerns about transparency, accountability, and judicial independence. The authors aim to critically analyse the evolution of the Collegium System and the National Judicial Appointments Commission (NJAC), highlighting their respective strengths and weaknesses in light of the constitutional principle of the separation of powers and judicial independence. The study examines the historical development of these systems, focusing on key judicial rulings, such as S. P. Gupta v. Union of India and the Supreme Court Advocates-on-Record Association v. Union of India, which have shaped the current judicial appointment process.

The paper incorporating doctrinal research and comparative analysis explores the NJAC’s attempt to introduce more executive involvement, aiming to enhance transparency and curb nepotism, and its subsequent declaration as unconstitutional. Through comparative analysis, the research assesses which system better guarantees public trust, diversity, merit-based selection, and effective judicial accountability. The paper further proposes reforms to improve the Collegium System, such as clear qualification criteria, regular performance evaluations, and enhanced documentation of decisions to promote transparency.

BACKGROUND

The Indian Constitution has organized its governmental organs in a manner that ensures they carry out their functions independently, avoiding any infringement or overlap with the duties of other branches. This organizational framework is built on the principle of the separation of powers, aiming to establish a system of checks and balances that prevents any single branch from exerting excessive control1. Among the three branches- executive, legislative, and judiciary—the Judiciary holds a prominent position. It stands as a crucial element in the governmental structure, playing a vital role in the effective functioning of the nation. The Judiciary interalia assumes a significant responsibility in upholding the equilibrium of powers among the branches. Appointment of judges who occupy pivotal roles within such a crucial organ is absolutely imperative.

Though the Constitution of India does not provide for a mechanism therefor, it lays down certain guidelines as to the appointment of the judges in the Supreme Courts and the High Courts. The appointment of the judges in the High Courts and the Supreme Courts is done by the President of India and the powers are given to him under Articles 124(2) and 217 of the Indian Constitution. The President is just required to consult with judges of the Supreme court and High Court as it may deem necessary. Article 124(2) of the Constitution provides that "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 the purpose and shall hold office until he attains the age of sixty-five years.

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. " Article 217 of the Constitution states: "Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. ". In essence, originally, there existed a simple system of appointment whereby the president, in consultation with the Chief Justice and other Judges of the Supreme Court, shall appoint the High Court Judges and Chief Justices, and the Supreme Court Judges.

Though there was no 1 See, Rajat Garg, Separation of Powers Is a Myth: In Reference to National Judicial Appointment Commission or NJAC, 1 International Journal Of Integrated Law Review (2020)

mention about the appointment of the Chief Justice, by convention the senior-most Judge of the Supreme Court used to be appointed as the Chief Justice of India. The evolution of the seniority principle in the appointment of the Chief Justice of India can be traced back to historical circumstances surrounding early appointments to the judiciary. Following the tenure of the first Chief Justice, H. J. Kania, Prime Minister Jawaharlal Nehru attempted to nominate Justice M. C. Chagla from the Bombay High Court as CJI. This move was contested by six Supreme Court judges who threatened to resign unless the senior-most Supreme Court judge, Justice Shastri, was appointed. 2 What sparked the intense controversy in the method of appointment of judges, is the appointment of Justice A. N. Ray during the period of State Emergency.. Justice A. N.

Ray’s appointment as Chief Justice of India, along with his decisions during the emergency, sparked suspicions of close ties to the government and a perceived lack of judicial independence. The controversy arose from deviating from the tradition of appointing the Chief Justice based on seniority, leading to a conflict between the executive and the judiciary. This controversy eventually paved way for the collegium system The seniority principle has attracted significant criticism. Critics contend that this principle does not ensure the appointment of the most qualified judge, as it overlooks considerations of merit by placing primary importance on seniority. Furthermore, adherence to seniority often leads to shorter tenures for judges.

The controversy surrounding the seniority principle is reinforced by concerns over potential political interference in judicial appointments, which compromises the perceived independence of the judiciary from political influences.

RESEARCH QUESTION

This paper aims to critically analyse both the systems in light of the doctrine of separation of powers and independent judiciary to answer the question as to which among the aforementioned systems would effectively ensure transparency, accountability, objectivity, public trust, diversity and equal representation in the Judiciary. 2 See, Malavika Parthasarathy, The Seniority Principle: How is the Chief Justice of India Selected?, SC OBSERVER (April 1, 2024) https://www.scobserver.in/journal/the-seniority-principle-how-is-the-chief-justice-ofindia-selected.

RESEARCH OBJECTIVES

a) To examine the historical development of the collegium system and NJAC and the controversies thereof. b) To conduct a comparative analysis of both systems, critically evaluating their respective merits and drawbacks. c) To determine, through careful consideration, which system is better suited to guarantee transparency, accountability, objectivity, public trust, diversity, and equal representation within the judiciary.

RESEARCH METHODOLGY

Doctrinal Research through Comparative analysis and literature review.

COLLEGIUM SYSTEM

The Collegium is a framework for appointing and transferring judges that has developed through rulings of the Supreme Court, rather than being established by an Act of Parliament or a constitutional provision. The Chief Justice of India heads the Supreme Court Collegium, which includes the four most senior judges of the court. Similarly, a High Court Collegium, responsible for the same functions at the High Court level, is led by its Chief Justice along with four other senior judges of that court. The High Court Judges are appointed based upon the recommendations of the Chief Justice of the concerned High Court and the opinions of the Supreme Court Judges who have at some point of time been associated with that concerned High Court known as the Opinion Judges. The Chief Justices and the Supreme Court Judges are appointed based on the decision of the collegium and the Opinion Judges.

The evolution of the collegium system in India is rooted in four landmark cases, known as the four judges’ cases, namely the

1. S. P. Gupta v. Union of India (1981),

2. Supreme Court Advocates-on-Record Association vs Union of India (1993), and

3. In re Special Reference 1 of 1998.

4. National Judicial Appointment Commission (NJAC) Case

SP Gupta vs Union of India3 is a landmark case in the ‘Three Judges Cases,’ crucial in shaping the collegium system for judge appointments. The 1981 case challenged a government order on the non-appointment and transfer of judges in various high courts, raising constitutional concerns. The central issue revolved around the appointment of additional judges to the Supreme Court for a limited term, challenging their conversion to permanent positions to safeguard judicial independence. In a majority decision of 5:2, the court upheld the validity of not extending the term of an additional judge, Judge S. N. Kumar. The case featured a 7-judge bench, with Justice Bhagwati proposing the establishment of a collegium for judge appointments in the Supreme Court and High Courts. They further, expressed the view that the term ‘consultation’ in the Constitution does not imply ‘concurrence.

’ It emphasized that the ultimate authority in the appointment of judges resides with the government rather than the Chief Justice of India. In the Supreme Court Advocates-on-Record Association Vs Union of India4 in 1993, a ninejudge Constitution Bench overturned the S P Gupta case decision and established a specific process known as the ‘Collegium System’ for appointing and transferring judges in the higher judiciary. Emphasizing the need for the apex court to safeguard the integrity and independence of the judiciary, the majority verdict gave prominence to the Chief Justice of India in matters of appointments and transfers. It asserted that the term ‘consultation’ does not diminish the primary role of the Chief Justice in judicial appointments.

The court stated that the Chief Justice should recommend candidates in consultation with his two senior colleagues, and the executive should act on these recommendations. It also observed that while the executive could request reconsideration if the collegium reaffirmed the recommendation, the executive was obliged to make the appointment5. In 1998, President K R Narayanan initiated a Presidential Reference6 to the Supreme Court, seeking clarification on the interpretation of the term ‘consultation’ under Article 143 of the Constitution, which pertains to advisory jurisdiction. The key issue was whether ‘consultation’

3 SP Gupta v. UOI, 1981 Supp SCC 87

4 Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441

5 See, Rishika Singh & Akanksha Tiwari, The Debate Around Njac and Collegium System, 3 SUPREMO AMICUS (2018).

6 Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739

necessitated discussions with multiple judges to form the Chief Justice of India’s opinion or if the Chief Justice's sole opinion could constitute ‘consultation.’ In response, the Supreme Court established nine guidelines for the functioning of the Quorum, (a committee) responsible for appointments and transfers, shaping the current structure of the collegium. This opinion specified that the Chief Justice of India, along with his four senior colleagues instead of two, should make recommendations. It also mandated consultation with Supreme Court judges affiliated with the relevant High Court and emphasised that even if two judges dissented, the Chief Justice should not withdraw the recommendation sent to the government. Since then, the collegium has consistently provided recommendations for the appointment and transfer of judges.

FUNCTIONS OF THE COLLEGIUM:

§ Nomination and Recommendation: The commission is responsible for the appointments and transfers and is tasked with nominating individuals for high-level judicial positions. This involves selecting candidates based on their ability, integrity, and standing in the legal profession. § Transfer Recommendations: The commission is also responsible for recommending transfers of Chief Justices or Judges from one High Court to another. This involves assessing the suitability and necessity of such transfers. § Specifically for the appointment of High Court Judges, the commission gathers the written views of the Governor, Chief Minister, and Chief Justice of the respective High Court state regarding potential candidates.

The entire recommendation process must adhere to specific regulations set forth by the commission, ensuring a standardized and transparent method for appointing High Court Judges. 7 WHAT IS NJAC?

In an effort to reform the judicial appointment process in India, the then Law Minister - Ravi Shankar Prasad introduced the National Judicial Appointments Commission Bill,2014 on August 11, 2014. Pursuantly, the 99th Constitutional Amendment was passed by the Lok Sabha 7 See, Rishika Singh & Akanksha Tiwari, The Debate around NJAC and Collegium System, 3 SUPREMO AMICUS

480 (2018.

on August 13, 2014 and by the Rajya Sabha on August 14, 2014. Simultaneously, the parliament passed the National Judicial Appointments Act, 2014 to regulate NJAC. Both got ratified by 16 states and then got the presidential assent on December 31, 2014. The amendment introduced a new Article, Article 124A, and brought in changes to Article 124 (2) and 217 (1) of the Constitution of India. The enactment of the NJAC Act in 2014, facilitated by Parliament's authority under Article 124C, was intended to replace the collegium system of judicial appointments with a process that promised increased transparency and democratic accountability in the selection of judges. 8 The composition of the NJAC was designed to provide a broader and more inclusive approach to judicial appointments.

It comprised six members, including the Chief Justice of India (CJI) as the ex-officio Chairperson, two senior judges of the Supreme Court chosen by a collegium of judges for a specific term, the Union Minister of Law and Justice, and two eminent persons nominated by a committee consisting of the Prime Minister, CJI, and Leader of the Opposition in the Lok Sabha. The functions of the NJAC were outlined to include recommending candidates for various judicial positions, such as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts, and other Judges of High Courts. Additionally, the commission was tasked with facilitating transfers of judges between High Courts and ensuring that recommended candidates met the required criteria of ability, merit, and other qualifications specified in the regulations.

Procedures outlined for the NJAC included the reference of judicial vacancies to the commission by the central government within specific time frames. The selection process for Supreme Court and High Court judges involved considering factors such as experience, merit, and suitability as per established criteria. The commission had the authority to recommend candidates for appointment, subject to the agreement of its members. In the case of High Court judge appointments, input from the Governor, Chief Minister, and consultation with relevant stakeholders were mandated, with provisions for member veto power to ensure consensus. The NJAC Act aimed to strengthen the relationship between the executive and judiciary by granting the President authority to reconsider recommendations from a newly formed commission. This commission aimed to introduce greater transparency and accountability

8 Suhrith Parthasarathy, Assessing the NJAC Judgment, 3 J. NAT'l L. U. DELHI 25 (2015-2016).

compared to the previous opaque collegium system, ensuring that the executive would be informed about judicial appointments. One significant goal of the National Judicial Appointments Commission (NJAC) was to eliminate nepotism and favoritism in favour of appointing judges based on merit and experience, addressing concerns about unfair practices like nepotism, favouritism, and bribery associated with the collegium system. The NJAC sought to curb corruption and ensure fair, merit- based appointments to the High Court and Supreme Court of India. This power allowed any two dissenting members to block a recommendation, ensuring appointments were not made arbitrarily. These were some of the key advantages of the NJAC as compared to the previous collegium system.

However, the Supreme Court has declared the National Judicial Appointment Commission Act, 2014 and the 99th Constitutional Amendment Act, 2014 void and unconstitutional. In the ‘Fourth Judges Case,’9 a five-judge Constitution Bench examined the constitutional validity of the Constitution (Ninety-Ninth Amendment) Act, 2014 (99th Amendment), and the National Judicial Appointments Commission Act, 2014 (NJAC Act), which aimed to replace the existing collegium system for judicial appointments. In a 4:1 majority, the Court held the 99th Amendment and NJAC Act unconstitutional, citing a violation of the principles of separation of powers and judicial independence. The dissenting opinion argued for alternative methods for an independent and efficient judiciary.

The majority revived the collegium system, acknowledging the need for improvement while emphasizing the lack of transparency and accountability in the NJAC framework. Justice Lokur highlighted privacy concerns and the failure to balance the implicit fundamental rights to know and privacy in the NJAC Act10. The judgment underscored the importance of addressing privacy issues and refining the collegium system. The court noted the necessity of revisiting the Memorandum of Procedure (MoP) to prevent complications. Following this, the government formulated a revised version of the MoP in 2017, submitting it to the Supreme Court. Nevertheless, the involved parties have been unable to achieve a consensus on the 2017 draft.

In essence, the Supreme Court has held that the collegium System will remain operative which was established by its ruling earlier in the 1993 case for appointment of judges to higher judiciary. As alluded to supra, this sparked off the

9 Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1

10 Rehan Abeyratne, Upholding Judicial Supremacy in India: The Njac Judgment in Comparative Perspective, 49 The George Washington International Law Review (2017).

tussle between the Judiciary and the executive. Under the collegium system, judges of the higher judiciary are appointed without direct government involvement. The government's role is limited to conducting inquiries through the Intelligence Bureau for potential candidates and raising objections or seeking clarifications from the collegium. However, if the collegium maintains its choices, the government is constitutionally obligated to appoint them as judges based on Supreme Court judgments. The NJAC effectively addresses previous concerns regarding the imbalance between the executive and judiciary by involving three judicial officers, the Union Law Minister, and various political bodies in the appointment process, with the final recommendation going to the President.

Though it can be argued that the issue of judicial accountability is partially resolved as the judiciary would now be answerable to the executive regarding appointments, this gives greater authority to the executive branch compared to the judiciary, which is completely against the doctrine of independent judiciary. One might argue that NJAC has two eminent persons and only one person from the executive branch. To be noted, if two members of the commission were against the appointment of a candidate, then the candidature had to be rejected. This veto power implies that if either of the eminent persons aligns with the government or succumbs to pressure or inducements for lucrative positions, the executive's influence in candidate appointments increases significantly. This could exacerbate conflicts rather than facilitating the anticipated smooth operation.

Further, the NJAC, in contrast to the collegium system, did not alter the approach to judicial appointments or introduce transparency measures. The primary change introduced by the NJAC was the inclusion of the government in its executive capacity, without altering much else. Essentially, the NJAC resembles the current collegium system except for its composition. Moreover, the inclusion of even numbers in the commission is a significant drawback that deviates from the conventional method of forming committees. Moreover, the lack of clear qualifications for the appointment of distinguished individuals is a notable oversight.

RECOMMENDATIONS

As alluded to supra, the real and primary problem with the collegium system is lack of transparency and its own biases and not judges appointing judges. The real solution would not be involvement of the government or the executive members but to improve transparency and

develop a checking mechanism with less external influence into the appointment process. Involving other organs in a country like India is fatal to the doctrine of Independent Judiciary. To address the lack of transparency in the system of judges appointing judges, implementing the following recommendations could be considered: I.

Criteria: Develop comprehensive criteria outlining the qualifications, experience, and ethical standards required for judicial candidates. These guidelines should be publicly available and strictly adhered to during the selection process II.

Recording Meetings and Collegium Resolutions: All meetings and resolutions of the collegium, responsible for appointing judges, should be recorded and documented. This includes recording discussions, decisions, and voting outcomes to enhance transparency and accountability. III.

Merit-based Selection: Emphasize merit-based selection criteria to ensure that appointments are based on qualifications, competence, and integrity rather than political considerations or personal relationships. IV.

Judicial Performance Evaluation: Implement a system for evaluating the performance of appointed judges periodically. This evaluation can be based on factors such as legal competence, efficiency, impartiality, and adherence to ethical standards. Transparent assessment mechanisms contribute to accountability and merit-based decision-making in judicial appointments. V.

Term Limits and Rotation: Introduce term limits or rotation policies for judges to prevent the concentration of power and promote diversity within the judiciary. Regular turnover can also facilitate opportunities for fresh perspectives and prevent stagnation. By implementing these recommendations, the transparency of the judicial appointment process can be significantly enhanced, fostering public trust and confidence in the judiciary.

CONCLUSION

The appointment of judges in India is a complex issue characterized by debates surrounding the effectiveness and transparency of the existing collegium system. While established by the

judiciary itself, the collegium system has faced criticism over transparency and accountability concerns. The National Judicial Appointments Commission (NJAC) was introduced to address these issues; however, it was invalidated due to apprehensions about potential executive overreach and threats to judicial independence. Presently, the collegium system remains operational, albeit with calls for reform. Efforts to revise the Memorandum of Procedure (MoP) governing the collegium system are underway, yet consensus on these revisions has yet to be achieved. It is imperative to find a middle ground that ensures both judicial independence and a fair, transparent selection process. Potential reforms to the collegium system may involve incorporating neutral members or enhancing transparency in the selection process.

BIBLIOGRAPHY:

BOOKS

1. M.P. Jain, Indian Constitutional Law,8th Edition, 2012.

2. P.M. Bakshi & Jaswant Singh, The Constitution of India, 2007 Edition.

3. V.N. Shukla, Constitution of India, 9th Edition, 2006

ARTICLES

1. Arghish Akolkar, Quasi Federal Understanding of the Doctrine of Separation of Power

in the Indian Constitution, 3 INDIAN J.L. & LEGAL RSCH. 1 (2021)

2. Rajat Garg, Separation of Powers Is a Myth: In Reference to National Judicial

Appointment Commission or NJAC, 1 International Journal Of Integrated Law Review (2020).

3. Rajat Upadhyay, NJAC Judgement, 2 INDIAN J.L. & LEGAL RSCH. 1 (2021)

4. Rehan Abeyratne, Upholding Judicial Supremacy in India: The Njac Judgment in

Comparative Perspective, 49 The George Washington International Law Review (2017).

5. Rishika Singh & Akanksha Tiwari, The Debate Around Njac and Collegium System,

3 SUPREMO AMICUS (2018).

6. Srishti Maheshwari & Ojasvi Chhabra, A Critique on the NJAC Judgement, 3 INDIAN

J.L. & LEGAL RSCH. 1 (2021)

7. Suhrith Parthasarathy, Assessing the NJAC Judgment, 3 J. NAT'l L. U. DELHI 25

(2015-2016)

WEBSITES

1. https://heinonline.org/

2. https://www.scconline.com/

3. https://www.westlawasia.com/india

4. https://www.jstor.org/

5. Supreme Court Observer (scobserver.in)

6. http://livelaw.com/