Concerns over the collegium system

1. At a Glance

• The collegium system is a way of appointing judges that the Supreme Court devised itself. It is not written in the text of the Constitution [1].
• The Constitution only says the President appoints judges after "consultation" with the judiciary: Art. 124 for the Supreme Court and Art. 217 for the High Courts [1].
• The core debate is judicial independence vs. transparency and accountability: who picks the judges, and how openly.
• Why it matters for UPSC: it recurs in GS-II (judiciary, separation of powers, constitutional bodies) and in Prelims questions on Articles and the Judges Cases.

2. Why in the News

• Retired Supreme Court judge Justice Sanjay Kaul said that former CJI D.Y. Chandrachud may have discussed proposed names for judgeship with the Union Government before the collegium met to consider them [1].
• Kaul called this seeking the government's "pre-approval", which in his view weakens the judiciary's autonomy [1].
• The remarks started a broader debate on how the collegium has evolved and how to make judicial appointments more transparent (The Hindu, Chennai print edition, 30 Oct 2026, p. 43) [1].

3. Background & Evolution

• Original design: the Constitution required the executive to consult the judiciary before appointing judges. The aim was to protect judicial independence and ensure quality, since judges are best placed to judge a candidate's professional and technical merit [1].
• Until the 1980s: the government appointed judges after consulting the judiciary, following the constitutional text [1].
• Key milestones in order:
• 1981, First Judges Case (S.P. Gupta v. Union of India): held that "consultation" does not mean "concurrence", which gave the executive primacy †.
• 1993, Second Judges Case (SC Advocates-on-Record Association v. UoI): read "consultation" as concurrence. Judicial primacy began, and the collegium was born †.
• 1998, Third Judges Case (a Presidential Reference under Art. 143): expanded the SC collegium to CJI + 4 senior-most judges †.
• 2014, 99th Constitutional Amendment Act and NJAC Act, 2014: created a National Judicial Appointments Commission and inserted Art. 124A †.
• 16 Oct 2015, Fourth Judges Case (SCAORA v. UoI): the NJAC was struck down 4:1 as a violation of the basic structure (judicial independence). Justice J. Chelameswar dissented †.
• Oct 2017: the SC collegium started publishing its resolutions online, under CJI Dipak Misra †.
• 2023–24: a revised Memorandum of Procedure (MoP) is still unfinalised, and the government continues to sit on recommended names †.

4. Core Static Facts

5. Multi-Dimensional Analysis

Legal / Constitutional

• The Constitution says "consultation" [1]. Reading it as concurrence is judicial interpretation, which raises a question of textual fidelity.
• Judicial independence is part of the basic structure. That was the ground for striking down the NJAC †.
• The pre-approval allegation reverses the constitutional order. The executive would be screening names before the judiciary forms its opinion [1].

Ethical / Governance

• Opacity: there are no published criteria for selection, and minutes and reasons are not disclosed. Critics call it "judges appointing judges" †.
• Informal executive influence: back-channel talks with the Centre [1] undercut both sides of the argument. The judiciary loses autonomy, and the executive gets influence without being accountable for it.
• Conflict of interest and nepotism: critics allege a bias toward "uncle judges" (relatives of sitting or former judges) †.

Administrative

• Delays: names are held without a fixed timeline for the executive to clear them, and reiterated names are still pending. This adds to vacancies and pendency †.
• The MoP has not been finalised since 2015, and the two sides disagree over a secretariat and the government's power to veto on national-security grounds †.

Social

• Diversity deficit: women, SC/ST/OBC and minority communities are under-represented on the bench, and there is no reservation in higher judicial appointments †.
• A bench that does not look like the public it serves loses legitimacy in public perception.

Historical / Comparative

• The pendulum has swung from executive primacy (until the 1980s [1], including the supersession of judges in 1973 and 1977) to judicial primacy after 1993 †.
• In other countries, the UK uses a Judicial Appointments Commission (2005) and the US uses presidential nomination with Senate confirmation. Both are models for reform †.

6. Recent Developments (last 12-18 months)

• Oct 2026: Justice Sanjay Kaul's disclosure that former CJI D.Y. Chandrachud may have sought the Centre's "pre-approval" of names before the collegium met [1].
• Oct 2026: this set off a renewed debate on the evolution of the collegium and on transparency reforms in judicial appointments [1].
• No other 2025–26 developments could be verified because web retrieval failed. Update this section from PIB or Department of Justice vacancy data.

7. Prelims Hooks

• Supreme Court judges are appointed by the President under Art. 124 after consulting the CJI [1].
• High Court judges are appointed under Art. 217 after consulting the CJI, the State Governor and the HC Chief Justice [1].
• The Constitution uses "consultation". The word "collegium" does not appear in it [1].
• The collegium system was devised by the Supreme Court, not by Parliament [1].
• Executive-led appointments after consultation were the practice until the 1980s [1].
• First Judges Case (1981): S.P. Gupta, which gave the executive primacy †.
• Second Judges Case (1993): the collegium was created and "consultation" was read as "concurrence" †.
• Third Judges Case (1998): came through Art. 143 (an advisory reference), and the SC collegium became CJI + 4 †.
• NJAC: set up by the 99th Amendment, 2014, which inserted Art. 124A, and struck down in 2015 by a 4:1 majority †.
• Lone dissent in the NJAC case: Justice J. Chelameswar †.
• Transfer of HC judges: Art. 222 †.
• Memorandum of Procedure: the operative guideline for appointments. It is not a statute †.

8. Why Secret Pre-Approval Is Worse Than the NJAC It Replaced

• The Court rejected a government seat that everyone could see
• In 2015 the Supreme Court struck down the NJAC. It held that putting the executive (the Union government) inside the appointment body damages judicial independence and the separation of powers [8].

• Under the NJAC, the Law Minister would have voted openly, as one of six members [8].

• Kaul's allegation describes a hidden role with more power

• If names are cleared with the Centre before the collegium meets, the government decides who gets considered at all [1].

• A name the government dislikes simply never reaches the table. This works like a veto, but nobody casts a vote.

• No record means nobody can be held to account

• A talk held before the meeting never appears in the collegium's resolution, so the public cannot question it.
• The government is not answerable for it either, because officially the collegium made the choice.
• The judiciary loses its independence and the public gets no accountability in return. The system ends up with the weaknesses of both models and the strengths of neither [1].

9. The Best Argument for Keeping the Collegium — and Where It Falls Short

• The case for it is serious
• The government is a party in a huge share of court cases. If it picks the judges, it is choosing who will decide its own cases.
• India has seen this go wrong. Senior judges were superseded (passed over for Chief Justice) in 1973 and 1977, after rulings the government did not like (see the note's Section 5).

• In 2015 the Supreme Court treated this risk as serious enough to protect judicial independence as part of the basic structure, the core of the Constitution that even Parliament cannot amend [8].

• What the defenders get right

• Independence from the executive matters more in India than in many countries, because the State is so often the litigant (the party bringing or defending the case).

• So any reform that simply hands appointments back to the government repeats the 1970s problem.

• Where the argument fails

• The collegium was meant to keep the executive out. But the government still controls when a name is cleared, and so whether it is cleared at all (see next section) [2].
• If Kaul is right, the executive is also shaping which names come up [1].
• So the collegium does not fully deliver the independence it is defended for. It also gives up transparency, which PRS identifies as its main cost [8].

10. How Delay Works as a Silent Veto

• The government can hold a file instead of rejecting it
• In 2018 and 2019, the government took on average 5 to 7 months to appoint a High Court judge after the collegium had recommended the name [2].

• The MoP (Memorandum of Procedure, the agreed rulebook for appointments) sets no binding deadline for the executive to act. Holding a file costs the government nothing.

• The judiciary is late too

• The MoP asks High Courts to send names at least six months before a seat falls vacant [4].
• Government replies in Parliament say this time limit is rarely kept [4].

• So delay builds up at both ends: names are sent late and cleared late.

• The result is empty seats

• In July 2024, High Courts had a sanctioned strength of 1,114 judges. Only 757 were working and 357 seats were vacant, about one in three [3].
• At the same time, 219 proposals were stuck at different stages between the government and the collegium [3].
• Every empty seat adds to pendency (the backlog of undecided cases). The person who pays is the litigant waiting for a hearing.

11. Who Actually Becomes a High Court Judge

• The numbers since 2018
• Out of 849 High Court judges appointed from 2018 to 9 March 2026, 33 were SC (3.9%), 17 ST (2.0%), 104 OBC (12.2%) and 46 from minorities (5.4%) [5].
• Out of 847 appointed up to 23 January 2026, 130 were women (about 15%) [6].

• A parliamentary committee report, summarised by PRS, also put SC and ST shares at about 3% and 1.5% [7].

• Why a closed system produces a narrow bench

• Collegium judges choose mainly from lawyers and judges they have seen in their own courts.
• There is no open call for applications and no published list of criteria, so people outside these circles are never seriously considered.

• There is no reservation in higher judicial appointments. The government says it can only request Chief Justices to consider SC, ST, OBC, minority and women candidates [5].

• Even the data is weak

• Category-wise data exists only from 2018, and only because candidates now declare their social background themselves [5].
• So nobody can measure diversity before 2018, or check the collegium's record against any target.

12. What Each Side Must Do to Fix It

• Government and Supreme Court: finish the MoP, with deadlines on both sides
• The MoP has been pending since 2015 (see the note's Section 5).
• It should set a fixed time for the executive to clear or return a name. A name the collegium reiterates (sends back again) should be cleared within that time.

• It should also make the six-month rule for High Courts [4] enforceable, not optional.

• Collegium: put every contact with the government on paper

• This is the direct answer to Kaul's pre-approval allegation [1].
• Any input from the government, such as an Intelligence Bureau report, should be written down in the file and mentioned in the resolution.

• The executive then still has a voice, but only on the record. That is the open role the NJAC judgment worried about, now made visible [8].

• Collegium: publish criteria and a diversity report

• Since Oct 2017 the collegium has published its resolutions (see the note). The next step is to publish the criteria used to choose candidates.

• It should report each year how many SC, ST, OBC, minority and women candidates it considered and selected. The self-declared data collected since 2018 already makes this possible [5][6].

• Supreme Court: deliver the reform it promised in 2015

• When it struck down the NJAC, the Court itself said it would hold hearings on how to improve the collegium [8].
• PRS frames the real task as a system that gives both independence and accountability, rather than choosing one over the other [8].
• The UK's Judicial Appointments Commission (2005) is one model: an independent commission, separate from the government, that invites open applications (verify this as a † fact in the note).

13. Anchors for Answers

• Data: 357 of 1,114 sanctioned High Court seats vacant, with 219 proposals pending (July 2024) [3]
• Data: Of 849 High Court judges appointed from 2018 to March 2026, 33 SC, 17 ST, 104 OBC and 46 minority [5]; women were 130 of 847 [6]
• Data: On average the government took 5 to 7 months to appoint a High Court judge after the collegium recommended the name (2018 and 2019) [2]
• Report/Committee: Parliamentary committee report on judicial processes and their reforms, which put SC and ST shares among High Court appointees since 2018 at about 3% and 1.5% (PRS summary) [7]
• Law/Case: SCAORA v. Union of India (2015), the NJAC judgment: executive participation violates judicial independence and the separation of powers, which are part of the basic structure; the Court said it would hear how to improve the collegium [8]
• Comparison: UK Judicial Appointments Commission (2005): an independent body with open applications, unlike India's closed selection by judges (verify as a † fact in the note)

14. Mains Relevance

• GS-II: "Structure, organisation and functioning of the Executive and the Judiciary", "Separation of powers between various organs", and "Appointment to various constitutional posts".
• GS-IV: probity, transparency and conflict of interest in public institutions.
• Essay: the independence and accountability of institutions.
• Possible question stems: 1. "The collegium system, a product of judicial interpretation, has secured independence at the cost of transparency." Critically examine, with reference to recent controversies. (15 marks) 2. 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? (15 marks) 3. Informal consultation between the judiciary and the executive over judicial appointments undermines both independence and accountability. Comment. (10 marks)

15. Related Topics to Study Next

• Basic Structure Doctrine (Kesavananda Bharati, 1973): the doctrine used to invalidate the NJAC.
• Separation of powers and checks and balances: the conceptual frame for executive vs. judicial primacy.
• Judicial pendency and vacancies: how appointment delays affect access to justice.
• Removal of judges (Art. 124(4), Judges (Inquiry) Act, 1968): the accountability counterpart to appointment.
• All India Judicial Service (Art. 312): the debate over recruiting to the lower judiciary.
• Supersession of judges (1973, 1977): the historical background to the case for judicial primacy.
• Judicial accountability and the RTI Act (CPIO, SC v. Subhash Chandra Agarwal, 2019): whether the CJI's office comes under RTI.
• Post-retirement appointments of judges: a separate independence and conflict-of-interest concern.

16. NCERT Concepts to Revise

• Collegium system (Polity): The whole article is about how this judge-made appointment system works and where it falls short.
• Second Judges case (Polity): The 1993 ruling created the collegium by reading 'consultation' as concurrence, giving judicial primacy.
• NJAC case (Polity): Explains why the 2015 ruling struck down the NJAC as against judicial independence and revived the collegium.
• Independence of the judiciary (Polity): The central tension: Kaul says informal 'pre-approval' from the government weakens the judiciary's autonomy.
• Memorandum of Procedure (Polity): The unfinalised procedure document is a key reform and friction point in appointment transparency.
• Separation of powers (Polity): Executive screening of names before the judiciary decides blurs the line between the two organs.

17. Common Errors / Trap Areas

• Writing that the Constitution provides for the collegium. It does not. The collegium is judge-made [1].
• Mixing up the Judges Cases: the 1993 Second Judges Case created the collegium. The 1981 case gave the executive primacy, and the 1998 case was a Presidential Reference (Art. 143), not an ordinary case †.
• Art. 217 consultees: students forget the Governor. All three are required: the CJI, the Governor and the HC Chief Justice [1].
• NJAC amendment number: it was the 99th Amendment (2014). Do not confuse it with the 101st (GST) †.
• Art. 124A was inserted by the 99th Amendment but is inoperative after 2015. Do not cite it as a working provision †.