Discuss the constitutional provisions on appointing judges to the higher judiciary. Why did the NJAC fail, and what should a reformed appointment mechanism look like?

The Constitution requires the President to appoint judges after "consultation" with the judiciary. The collegium is not in the text; it is judge-made. The NJAC tried to replace it and failed, which left the transparency deficit unresolved.

Constitutional provisions

• Art. 124(2): the President appoints Supreme Court judges after consulting the CJI and other judges as needed [1].
• Art. 217: the President appoints High Court judges after consulting the CJI, the Governor and the HC Chief Justice [1].
• Art. 222 deals with transfers. Art. 124(4) allows removal only through Parliament, which secures tenure [1].
• Judges Cases: 1981 gave the executive primacy. 1993 read "consultation" as concurrence. 1998 fixed the collegium at CJI + 4 senior-most judges.

Why the NJAC failed

• The 99th Amendment (2014) inserted Art. 124A, creating a six-member commission: the CJI, two senior judges, the Law Minister and two eminent persons.
• SCAORA v. UoI (2015) struck it down 4:1. The Court held that executive involvement impinges on judicial independence and the separation of powers, a basic feature of the Constitution [2].
• The Court promised hearings to strengthen the collegium [2], but reform has stalled:
• Clearing HC recommendations took 5–7 months on average (2018–19) [3].
• 357 of 1,114 HC seats were vacant in July 2024 [4].

• Only 33 SC and 17 ST judges were among 849 HC appointees since 2018 [5].

• Recent allegations that the government informally "pre-approved" names show that executive influence persists without accountability.

A reformed mechanism

• Finalise the Memorandum of Procedure: set binding deadlines for the executive, and treat reiterated names as cleared.
• Put executive inputs on record: mention IB and government views in collegium resolutions.
• Publish selection criteria and invite open applications, as the UK Judicial Appointments Commission (2005) does.
• Publish annual diversity reports, using the self-declared category data collected since 2018 [5].
• Set up a permanent secretariat to vet candidates, while judicial primacy stays.

Arts. 124 and 217 sought to balance the executive and the judiciary, and the collegium secured independence but not openness. A transparent, time-bound and diverse process under judicial primacy would deliver both independence and accountability, as the NJAC judgment itself envisaged [2].