Discuss the constitutional and institutional basis of the Collegium system. How does it differ from the National Judicial Appointments Commission (NJAC) that was struck down by the Supreme Court?

The word "Collegium" appears nowhere in the Constitution. It is a judge-evolved mechanism grafted onto the text of Articles 124 and 217, under which the senior judiciary acquired primacy in appointing judges — a design that secures independence but remains contested on transparency.

Constitutional basis

• Article 124(2) (Supreme Court) and Article 217(1) (High Courts) vest appointment in the President, acting "after consultation" with the CJI and other judges; Article 222 governs transfer of HC judges [1].
• The judiciary reinterpreted "consultation" as concurrence, making the CJI's institutional opinion binding in practice.
• The Executive retains the final formal step: Law Ministry processing and a Presidential warrant under Article 217 — as in the Collegium's August 2026 recommendations of Chief Justices for the Patna, Calcutta, Bombay and Punjab & Haryana High Courts [2].

Institutional basis

• Built by the Three Judges Cases (1981, 1993, 1998), culminating in the CJI plus four senior-most Supreme Court judges; a High Court Collegium is its Chief Justice plus two senior judges.
• Operationalised by the Memorandum of Procedure (MoP), framed jointly by government and judiciary, which fixes the steps and consultations [3].
• Resolutions are published on the Supreme Court website, a post-2017 transparency measure [4].
• Convention of appointing HC Chief Justices from outside their parent court insulates leadership from local bar-bench networks [2].

Contrast with the NJAC

• Source: Collegium rests on judicial interpretation; the NJAC rested on the Constitution (99th Amendment) Act, 2014 and the NJAC Act, 2014, notified 13 April 2015 [5][6].
• Composition: judges alone, versus a six-member body — CJI, two senior SC judges, the Union Law Minister and two eminent persons — where any two members could veto a name [5].
• Outcome: struck down on 16 October 2015 (4:1) for violating judicial independence, part of the basic structure, reviving the Collegium [6].

The debate is therefore not judiciary versus Executive but how to combine independence with accountability. A time-bound, jointly finalised MoP with published criteria and a permanent secretariat would retain judicial primacy while curing opacity and vacancy delays — strengthening the separation of powers the 2015 verdict sought to protect.