Appointment of judges

Also called: Article 124(2), Article 217 · Topic: Judiciary: Independence, Structure, Judicial Review and Activism · NCERT: Class 11, Ch 6 "Judiciary"

Meaning

Appointment of judges is how judges of the Supreme Court and the High Courts are chosen. The President appoints them under Article 124(2) for the Supreme Court and Article 217 for the High Courts, after consulting judges and other authorities. In practice, since 1993 the President acts on names sent by the collegium, a group of the senior-most judges.

It matters because the person chosen as a judge shapes how laws fare in court. If the government controls appointments, it can reward friendly judges and pass over judges who rule against it, and that weakens judicial independence (judges' freedom to decide cases without pressure from the government).

Explanation

What the text of the Constitution requires

• Supreme Court (Art. 124(2))
• The President appoints every Supreme Court judge.
• Before doing so, the President consults whichever Supreme Court and High Court judges he thinks necessary.

• For a puisne judge (any Supreme Court judge other than the Chief Justice), consulting the Chief Justice of India (CJI) is compulsory.

• High Courts (Art. 217(1)): the President consults three authorities:

• the CJI
• the Governor of the state

• the Chief Justice of that High Court (for any judge other than the Chief Justice).

• Additional and acting High Court judges are appointed under Art. 224 [2].

• The legislature has no role. Parliament and state legislatures do not vote on judges or confirm them. In the USA, the Senate confirms judges, so India is different here.
• The text says "consult", not "agree". The word "collegium" does not appear anywhere in the Constitution. It comes from the Judges cases and the memorandum of procedure.

How the collegium works today (from the Third Judges case, 1998)

• Supreme Court collegium: the CJI and the 4 senior-most judges.
• High Court collegium (inside the Supreme Court): the CJI and the 2 senior-most judges. It also decides High Court transfers.
• Members must give their views in writing.
• If two collegium members object to a name, the name should not go forward.
• The government may return a name only once.
• It can send a name back to the collegium for reconsideration.

• If the collegium reiterates the name (sends it again), the government must appoint that person.

• Memorandum of procedure (MoP): the government's written rulebook for appointing judges. It was prepared in 1998, based on the Second Judges case judgment (6 October 1993) and the Third Judges case opinion (28 October 1998) [2].

The procedure, step by step

A. Supreme Court judges

1. The CJI starts the proposal after consulting the 4 senior-most puisne judges.
2. The CJI sends the recommendation to the Union Law Minister [2].
3. The file goes to the Prime Minister and then to the President, who appoints the judge.

B. High Court judges

1. High Court collegium: the High Court's Chief Justice and its 2 senior-most puisne judges recommend names. They must do this at least 6 months before a vacancy arises, but this time limit is "rarely observed" [2].
2. State government and Governor: they give their views on the names [2].
3. Union government: it adds Intelligence Bureau (IB) reports and any other reports it holds on the candidates [2].
4. Supreme Court collegium: it weighs the views of the High Court collegium, the state and the Centre [2]. It also consults Supreme Court judges who know that High Court well.
5. Union Law Ministry, then the Prime Minister, then the President: the appointment is notified.
6. Only names recommended by the Supreme Court collegium are appointed [2].

C. Related decisions

• High Court Chief Justices are chosen by the Supreme Court collegium. Under the policy, they usually come from outside the state.
• Choosing the CJI: by custom, the senior-most Supreme Court judge becomes CJI. The outgoing CJI recommends his successor under the MoP.

Limits and weak points

• Seniority is a custom, not a rule. Art. 124 does not say the senior-most judge must become CJI, so the convention was broken twice (1973 and 1977).
• Delays: the 6-month timeline is rarely met [2]. The government can also sit on files, which weakens the "return once, then bound" rule in practice.
• Opacity: the collegium publishes few reasons and has no fixed criteria for choosing judges.

In the Constitution and practice

• Constitutional base: Art. 124(2) for the Supreme Court, Art. 217 and Art. 224 for the High Courts [2], Art. 222 for transfers of High Court judges, and Art. 143 (the President's power to ask the Supreme Court for its opinion), which was used for the Third Judges case.
• The breaches of the seniority convention
• April 1973: A.N. Ray was made CJI over J.M. Shelat, K.S. Hegde and A.N. Grover. This came one day after Kesavananda Bharati (1973), where these three judges had ruled against the government.
• January 1977: M.H. Beg was made CJI over H.R. Khanna. Khanna was the lone dissenter in ADM Jabalpur (1976). He held that the right to life could not be suspended even during the Emergency. NCERT gives the year as "1975", but the correct date is January 1977.
• Both times, the judges who were passed over resigned in protest.
• Committed judiciary: this 1970s idea said judges should share the ruling party's social philosophy (for example, its views on land reform and property rights). Ministers defended it in Parliament in 1973. Critics saw it as a direct threat to judicial independence.

• Since 1977, the senior-most judge has been appointed CJI every time.

• The three Judges cases. The judiciary's role moved from consultative (its advice is asked for) to binding (its advice must be followed) to collegial (decided by a group of senior judges).

Case	Year	Holding	Who had the upper hand
First Judges case: S.P. Gupta v. Union of India	December 1981	'Consultation' does not mean 'concurrence' (agreement), so the President can disagree with the CJI. The government had primacy over appointments and transfers.	Executive
Second Judges case: SCAORA v. Union of India	6 October 1993 [2]; 9 judges	Overruled S.P. Gupta. The CJI's opinion has primacy, but the CJI must form it with the 2 senior-most judges. Seniority decides who becomes CJI.	Judiciary (the collegium is born)
Third Judges case: In re Special Reference No. 1 of 1998	28 October 1998 [2]; advisory opinion under Art. 143	Widened the collegium to the CJI + 4 for the Supreme Court and the CJI + 2 for the High Courts. PRS reads this as the 1993 rule being "slightly modified" [3]. Views must be given in writing.	Collegium

• Transfers (Art. 222): in Union of India v. Sankalchand Sheth (1977), the Court held three things:
• The judge's consent is not needed for a transfer.
• The consultation with the CJI must be real and effective, not a formality.

• A transfer must serve the public interest and must not be used as punishment.

• Attempt to replace the collegium: the NJAC

• Several bodies first proposed a judicial appointments commission: the Law Commission (1987), the NCRWC (2002), the National Advisory Council (2005) and the 2nd ARC (2007) [3].
• The Constitution (121st Amendment) Bill, 2014 and the NJAC Bill, 2014 passed the Lok Sabha on 13 August 2014 and the Rajya Sabha on 14 August 2014 [4]. The President gave assent in December 2014 [3].
• Members: the CJI (chair), the 2 senior-most judges, the Law Minister and 2 eminent persons. A panel of the PM, the CJI and the Leader of Opposition would pick the eminent persons [3].
• Veto: any two members could block a name [4].

• October 2015: a five-judge bench struck down both laws. It held that the executive's role in appointments harms judicial independence and breaks the separation of powers (each organ of government keeping to its own role) [3]. The collegium came back into force.

• Scale today: in the five years before July 2026, 608 High Court judges were appointed [2].

Don't confuse with

• Appointment vs transfer: appointment brings a person onto the bench (Art. 124(2) / Art. 217). A transfer moves a sitting High Court judge to another High Court (Art. 222), and the judge's consent is not needed (Sankalchand Sheth, 1977).
• Consultation vs concurrence: consultation means asking for advice that can be overruled, as held in S.P. Gupta (1981). Concurrence means agreement that binds. The Second Judges case (1993) gave the judiciary's opinion primacy.
• Collegium vs NJAC: in the collegium, judges alone recommend names. The NJAC would have added the Law Minister and 2 eminent persons, with any 2 members able to block a name [4]. It was struck down in October 2015 [3].
• India vs USA: in India, the legislature has no role in appointing judges. In the USA, the Senate confirms judges.

Prelims Hooks

• Art. 124(2): consulting the CJI is compulsory for appointing any Supreme Court judge other than the CJI. Art. 217(1): for High Court judges, the President consults the CJI, the Governor and the High Court Chief Justice. Art. 224: additional and acting High Court judges [2].
• Trap: the word "collegium" is not in the Constitution. It comes from the Judges cases and the 1998 MoP.
• Case–principle pairs: S.P. Gupta (1981): consultation ≠ concurrence, so the executive had primacy (also the landmark case on PIL). SCAORA (6 October 1993, 9 judges): the CJI with 2 senior judges has primacy. Third Judges case (28 October 1998): an Art. 143 advisory opinion that set the collegium at the CJI + 4 (Supreme Court) and the CJI + 2 (High Courts).
• Return-once rule: the government can return a name once. If the collegium reiterates it, the government must appoint.
• Supersessions: A.N. Ray (April 1973) over Shelat, Hegde and Grover. M.H. Beg (January 1977) over H.R. Khanna, the ADM Jabalpur dissenter.
• MoP: the High Court collegium must recommend names at least 6 months before a vacancy [2]. NJAC: passed in August 2014 and struck down by a five-judge bench in October 2015 [3][4].

Mains Points

• Independence vs accountability
• For the collegium: the 1973 and 1977 supersessions and the "committed judiciary" idea show what happens when the executive controls appointments.
• Against the collegium: it is opaque, publishes few reasons and has no fixed criteria. This is why reform bodies proposed commissions in 1987, 2002, 2005 and 2007 [3].

• Middle path: reform the collegium with written criteria, published reasons and a wider pool of candidates, instead of returning to executive control. The Court's 2015 NJAC ruling protected primacy for judges [3], so reform must work inside that limit.

• Delays and friction between the government and the collegium

• The 6-month advance timeline is rarely met [2].
• The government sometimes sits on files, which weakens the "return once, then bound" rule.

• Reform idea: a revised MoP with fixed time limits for each step, including for the government's response.

• Transfers as hidden pressure

• The judge cannot refuse a transfer (Sankalchand Sheth, 1977), so a transfer can quietly punish a judge for inconvenient rulings.
• Safeguards: record the reasons for each transfer and apply a real public-interest test.

Related concepts

• Committed judiciary
• Supersession of judges
• First Judges case
• Second Judges case
• Third Judges case
• Collegium system
• Transfer of High Court judges

Read more

• Appointing judges I: seniority, supersessions and the three Judges cases