Informal consultation between the judiciary and the executive over judicial appointments undermines both independence and accountability. Comment.

Articles 124 and 217 require the President to appoint judges after "consultation" with the judiciary. The judge-made collegium was meant to keep the executive at arm's length [1]. Justice Sanjay Kaul recently said that names were cleared with the Centre before the collegium met [1]. This shows how off-record consultation can hollow out both independence and accountability.

Erosion of independence

• Pre-screening works as a silent veto. If names are vetted before the collegium deliberates, the executive decides who is considered at all. Candidates it dislikes never reach the table [1].
• The sequence is inverted. The judiciary should form its opinion first. "Pre-approval" reverses the constitutional order [1].
• Delay becomes leverage. No timeline binds the executive. The government took 5–7 months on average to clear High Court recommendations in 2018–19 [2], which leaves room for informal bargaining.

Erosion of accountability

• There is no paper trail. Talks held before the meeting never appear in published collegium resolutions, so the public cannot scrutinise them.
• There is a responsibility gap. The executive shapes outcomes but answers for none of them, because the collegium formally decides.
• The costs are visible. In July 2024, 357 of 1,114 sanctioned High Court posts were vacant and 219 proposals were pending [3]. Of 849 High Court judges appointed since 2018, only 33 were SC and 17 ST [4]. An opaque process cannot be audited against such outcomes.

The other side

• Executive input on a candidate's background is legitimate. Total isolation of the judiciary is neither possible nor desirable.
• The real problem is informality. The NJAC was struck down in 2015 for giving the executive a role [5], but that role would at least have been visible. Secret consultation gives influence without a vote, so it combines the weaknesses of both models.

Way forward

• Finalise the Memorandum of Procedure, with time-bound clearance of names the collegium reiterates.
• Record every executive input in the file and the resolution.
• Publish selection criteria and annual diversity data.
• Hold the hearings on strengthening the collegium that the Court itself announced in 2015 [5].

The Constitution requires consultation, and the harm comes from keeping it informal. Turning back-channels into recorded, time-bound inputs would uphold judicial independence as part of the basic structure. It would also make appointments answerable to citizens, in line with SDG 16's call for accountable and transparent institutions.