Unpacking the Collegium System: The Debate Over Judicial Appointments in India

The Evolution of the Collegium System

Today’s collegium consists of the Chief Justice of India (CJI) and the four most senior Supreme Court judges. However, this setup is not explicitly provided in the Constitution. Chapter IV of the Constitution does outline the appointment process, stating that SC judges shall be appointed by the President in consultation with the CJI. This consultation, however, is not binding on the President, leaving room for acceptance or rejection in the national interest. This provision allowed for executive discretion, which was later misused during India’s Emergency regime.

Under Indira Gandhi’s government, these provisions were exploited, leading to the appointment of two CJIs who did not meet the seniority criteria, bypassing more qualified judges. These irregularities led to significant backlash, with one judge resigning in protest. The Supreme Court responded by claiming authority over judicial appointments, marking the beginning of the collegium’s evolution. Over time, this authority was refined, ultimately limiting the executive’s role. Today, if the government returns a recommendation for reconsideration and the collegium reaffirms it, the government is constitutionally bound to comply, with further rejection considered contempt of court.

Criteria for Appointments: Merit, Seniority, and Inclusion

The collegium’s criteria for appointments to HCs and the SC are centred on merit, seniority, and diversity. Candidates for HC judgeships require a minimum of ten years of practice in the High Courts or equivalent experience as trial court judges. Appointments to the SC usually involve elevating HC chief justices, with seniority and experience playing a crucial role. The CJI is chosen based on seniority, determined by the date of elevation to the Supreme Court among current judges.

Justice D.Y. Chandrachud, the current CJI, has emphasised these criteria, noting that in addition to merit and seniority, the collegium considers inclusivity regarding caste, community, and gender. However, this claim has faced criticism. Despite being part of the collegium for over four years, Justice Chandrachud did not appoint a single female HC judge to the SC during his tenure. His recommendation of Saurabh Kirpal, an openly gay senior advocate, was also denied by the government, even though the SC had previously decriminalised homosexuality. This disconnect between stated ideals and practice raises questions about the effectiveness of these criteria.

Allegations of Nepotism and Transparency Concerns

The collegium has been criticised for nepotism and lack of transparency. Familial ties have played a significant role in the appointments of certain judges, raising questions about impartiality. For instance, Y.V. Chandrachud, the longest-serving CJI in history, recommended Justice B.N. Kirpal for elevation to the SC. Later, Justice Kirpal recommended the elevation of D.Y. Chandrachud, Y.V. Chandrachud's son, to the Bombay HC. Similarly, D.Y. Chandrachud recommended the son of B.N. Kirpal, further suggesting nepotistic practices within the collegium.

According to a report from a Mumbai-based legal research group, approximately 50% of HC judges come from families with senior judicial ties. With around 13 lakh advocates in India and 1,100 posts for HC judges (900 temporary and 200 permanent), this concentration of appointments among 250–300 families raises concerns about fairness and representation. Former Union Minister of State for HRD Upendra Kushwaha and other advocates have echoed these concerns, indicating systemic favouritism.

Further insights into this opaque process were shared in interviews by former SC judges with The Caravan magazine. They revealed that collegium discussions are often informal, lacking documented records and objective criteria. Described as a “barter system,” these appointments, critics argue, reflect a “give-and-take” dynamic that lacks transparency. Senior advocate Prashant Bhushan notably claimed that half of the 16 CJIs were corrupt. Although he faced a contempt case for this, he defended his statement with 500 pages of evidence. The SC ultimately quashed the case but issued a symbolic fine, highlighting the judiciary’s discomfort with open criticism.

The NJAC: A Proposed Alternative for Transparency

In 2014, Parliament passed the National Judicial Appointments Commission (NJAC) Bill to bring more transparency to judicial appointments. The NJAC proposed a six-member commission comprising the CJI, two senior-most SC judges, the Law Minister, and two eminent persons. This body was meant to replace the collegium and curb executive overreach while increasing accountability. However, the Supreme Court struck down the NJAC in 2015, asserting that it could compromise judicial independence by involving the government too directly in appointments. This decision, perceived by some as an overreach by the judiciary, reignited the debate over the need for a more balanced approach to appointments.

The Debate on Judicial Independence and Accountability

Supporters of the collegium argue that it safeguards judicial independence by keeping the appointment process insulated from political influence. However, critics contend that its lack of transparency, allegations of nepotism, and inconsistent promotion of inclusivity undermine public trust. Dr. B.R. Ambedkar, one of the architects of the Constitution, had expressed concerns about giving excessive authority to the CJI in appointments, warning that the position, though distinguished, could still be subject to personal biases. He believed the President, rather than the judiciary alone, should hold the ultimate authority over appointments, lest power be concentrated among a select few.

The Path Forward: Striking a Balance

While the collegium system has played a role in preserving judicial independence, its drawbacks indicate a need for reform. Addressing issues of transparency, nepotism, and accountability without undermining independence will be essential for the judiciary’s future. Reforms might involve setting objective criteria, maintaining documentation of deliberations, and fostering greater diversity within the judiciary. As debates around the collegium and judicial independence continue, it is clear that India's judiciary must find a balanced approach that upholds constitutional ideals while adapting to contemporary needs.

Summary

The collegium system should be abolished, and a proper mechanism for appointing judges in the High Courts and Supreme Court should be established. Similar to the selection process for civil services, a commission for judicial appointments should be created to ensure greater transparency and accountability. This would help end the vicious cycle of nepotism in the Indian judicial system, making it more effective and inclusive. People from diverse communities and castes should be included, fostering a judiciary that better represents and serves India.

Mohammad Hesham Atik is a student pursuing Psychology from Jamia Millia Islamia.

Edited By: Sidra Aman

Disclaimer: The opinions expressed in this publication are those of the author. They do not purport to reflect the opinions or views of The Jamia Review or its members.