👉 Collegium System vs NJAC: Judicial Appointments in India Explained

The appointment of judges to the higher judiciary (Supreme Court and High Courts) in India has been a subject of continuous debate, primarily revolving around two prominent mechanisms: the Collegium System and the proposed National Judicial Appointments Commission (NJAC). This discourse highlights the perpetual tension between judicial independence, a cornerstone of the Indian Constitution, and the principles of accountability and transparency in a democratic framework.

1. Introduction

An independent and impartial judiciary is indispensable for upholding the rule of law and safeguarding constitutional values in any democratic nation. In India, the method of appointing judges to the Supreme Court and High Courts has witnessed a complex evolution, marked by judicial interpretations, legislative attempts, and landmark Supreme Court judgments. At the heart of this evolution lie the Collegium System and the National Judicial Appointments Commission (NJAC), representing two contrasting philosophies for ensuring a robust and independent judiciary while addressing concerns of transparency and accountability.

2. The Collegium System

The Collegium System is a unique mechanism for the appointment and transfer of judges in the higher judiciary that has evolved through Supreme Court judgments rather than through an Act of Parliament or a specific constitutional provision. It effectively grants the judiciary a primary role in its own appointments.

A. Foundational Concepts

The essence of the Collegium System is "judges appointing judges," emphasizing the judiciary's autonomy in its internal affairs. It is seen as crucial for insulating the judiciary from political interference, thereby preserving judicial independence, which is considered a part of the basic structure of the Constitution.

B. Historical Background: The Three Judges Cases

The Collegium System's genesis can be traced through a series of landmark Supreme Court judgments, often referred to as the "Three Judges Cases."

1. First Judges Case (S.P. Gupta v. Union of India, 1981):

   • Context: This case primarily dealt with the meaning of "consultation" in Articles 124(2) and 217(1) of the Constitution regarding judicial appointments and transfers.
   • Ruling: The Supreme Court held that "consultation" did not mean "concurrence." It ruled that the President was not bound by the Chief Justice of India's (CJI) advice, and the executive retained primacy in judicial appointments. The power of appointment of judges was exclusively vested with the President.
   • Impact: This judgment effectively gave the Executive primacy over the Judiciary for the next 12 years.

2. Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993):

   • Context: The correctness of the First Judges Case was doubted, leading to a larger bench examining the role of the CJI in appointments.
   • Ruling: A nine-judge Constitution Bench overruled the S.P. Gupta case. It held that "consultation" must be interpreted as "concurrence." This effectively accorded primacy to the CJI's opinion in matters of appointment and transfers.
   • Birth of Collegium: The Court established that the CJI's opinion should be formed in consultation with two senior-most judges of the Supreme Court, thus giving birth to the Collegium System. This transferred the primacy in judicial appointments from the executive to the CJI, based on a collective decision of a collegium of judges.
   • Impact: This case marked a significant shift, giving the judiciary a dominant role in its own appointments and transfers.

3. Third Judges Case (In re Special Reference 1 of 1998):

   • Context: President K.R. Narayanan sought an advisory opinion from the Supreme Court under Article 143 regarding the meaning of "consultation" in Articles 124, 217, and 222, specifically concerning the CJI's role and the Collegium.
   • Ruling: The Supreme Court reaffirmed the principles laid down in the Second Judges Case with minor modifications. It clarified that the CJI's recommendation for appointments and transfers must be made in consultation with a Collegium of four senior-most judges of the Supreme Court, not just two. The CJI's individual opinion alone does not constitute "consultation." If two judges give an adverse opinion, the CJI should not send the recommendation to the government.
   • Impact: This case solidified the Collegium System's structure and procedure, making it a five-member body (CJI + 4 senior-most judges).

C. Structure and Functioning

The Collegium System operates at two levels:

1. Supreme Court Collegium: Headed by the Chief Justice of India (CJI) and comprises the four senior-most judges of the Supreme Court.

   • Appointments to the Supreme Court: Recommends names for appointment as Supreme Court judges.
   • Appointment of CJI: By convention, the senior-most judge of the Supreme Court is appointed as the CJI.
   • Transfers of High Court Judges/Chief Justices: Recommends the transfer of Chief Justices and other judges of High Courts.

2. High Court Collegium: Led by the Chief Justice of the concerned High Court and includes two senior-most judges of that court.

   • Appointments to High Courts: Recommends names for appointment as judges to their respective High Courts to the Supreme Court Collegium.

D. Constitutional Articles (Indirect Relevance)

While the Collegium System itself is a judicial innovation, the constitutional basis for judicial appointments is found in:

• Article 124(2): Deals with the appointment of Supreme Court judges. It states that "Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years." It also specifies that "in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted."
• Article 217: Deals with the appointment of High Court judges. It states that "Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court."
• Article 222: Deals with the transfer of a judge from one High Court to another.

The Collegium System essentially provides the process through which the "consultation" mentioned in these articles is operationalized and given primacy by the judiciary.

E. Merits of the Collegium System

Proponents of the Collegium System highlight its crucial role in preserving the independence of the judiciary.

1. Upholds Judicial Independence: The primary argument in favour is that it insulates the judiciary from executive and political interference in judicial appointments, which is vital for maintaining an impartial judiciary.
2. Separation of Powers: It ensures the regulation of the doctrine of separation of powers by keeping the executive and legislature out of the appointment process.
3. Senior Judges Best Suited: Senior judges are considered best equipped to assess the legal acumen, integrity, and suitability of potential candidates due to their deep understanding of the legal profession and judicial requirements.
4. Prevents Political Appointments: By limiting executive influence, it aims to prevent appointments based on political patronage rather than merit.

F. Criticisms of the Collegium System

Despite its advantages, the Collegium System has faced persistent and significant criticism, both from within the legal fraternity and from the executive.

1. Lack of Transparency: This is the most significant criticism. The Collegium operates behind closed doors, without a transparent selection criteria or public disclosure of reasons for appointments or rejections.
2. Lack of Accountability: Critics argue that the system lacks accountability to any external body, leading to a concentration of power within a few judges.
3. Nepotism and Favouritism: The opacity of the system often leads to allegations of nepotism and favouritism, sometimes referred to as the "uncle judge syndrome."
4. Limited Pool of Candidates: It tends to draw candidates primarily from a small pool, potentially overlooking deserving individuals from diverse backgrounds.
5. Lack of Social Diversity: The system has been criticized for failing to address the issue of social diversity in the higher judiciary, with inadequate representation for women and marginalized communities.
6. Delays in Appointments: The Collegium System is often blamed for significant delays in filling judicial vacancies, contributing to the backlog of cases.
7. Against Checks and Balances: Critics argue that "judges appointing judges" violates the principle of checks and balances essential in a democracy.
8. Not Constitutionally Mandated: The system is not explicitly mentioned in the Constitution and has evolved solely through judicial interpretation. Even Dr. B.R. Ambedkar, during the Constituent Assembly debates, had rejected a similar idea, calling it "dangerous."

3. The National Judicial Appointments Commission (NJAC)

The National Judicial Appointments Commission (NJAC) was an attempt by the Parliament to replace the Collegium System and introduce a more transparent and accountable mechanism for judicial appointments.

A. Background and Objective

The NJAC was conceived as a response to the widespread criticisms against the Collegium System, particularly its lack of transparency and accountability. The objective was to create a more institutionalized process by involving both judicial and non-judicial elements, thereby ensuring a balanced and inclusive decision-making body for judicial appointments and transfers.

B. Constitutional Amendment

The NJAC was established through the 99th Constitutional Amendment Act, 2014, which came into force on April 13, 2015. Along with this amendment, the National Judicial Appointments Commission Act, 2014, was also passed by Parliament to regulate the functions of the NJAC. These acts were ratified by 16 state assemblies.

The 99th Amendment introduced new Articles and amended existing ones:

• Article 124(2) was amended: It replaced "after consultation with such of the Judges of the Supreme Court and of the High Courts... as the President may deem necessary" with "on the recommendation of the National Judicial Appointments Commission referred to in article 124A."
• New Article 124A: Prescribed the composition of the NJAC.
• New Article 124B: Outlined the functions of the NJAC.
• New Article 124C: Gave Parliament the power to regulate the procedure of the NJAC by law.

C. Structure and Composition (Article 124A)

The NJAC was designed to be a six-member body:

1. Chief Justice of India (CJI): Chairperson, ex-officio.
2. Two other senior-most Supreme Court Judges: Members, ex-officio.
3. Union Minister in charge of Law and Justice: Member, ex-officio.
4. Two eminent persons: Members, to be nominated by a committee consisting of:
   • The Prime Minister
   • The Chief Justice of India
   • The Leader of Opposition in the House of the People (or the leader of the single largest opposition party if there is no such Leader of Opposition).
   • Provision for diversity: One of the eminent persons was to be nominated from Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities, or women.
   • Tenure: Eminent persons would be nominated for a period of three years and would not be eligible for renomination.
   • Veto Power: Any two members of the NJAC could veto a recommendation.

D. Functions (Article 124B)

The NJAC's functions included:

• Recommending persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts, and other Judges of High Courts.
• Recommending the transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court.
• Ensuring that the persons recommended possess ability, merit, and other criteria mentioned in the regulations related to the Act.

E. Merits of the NJAC System (Expected)

The proposed NJAC aimed to address the shortcomings of the Collegium System:

1. Enhanced Transparency and Accountability: The inclusion of the Law Minister and "eminent persons" was intended to bring greater transparency and public accountability to the appointment process.
2. Broader Consultation: It sought to involve a wider range of stakeholders, including the executive and civil society, in judicial appointments, reducing judicial isolation.
3. Reduced Judicial Overreach: By re-introducing executive involvement, it aimed to restore the constitutional balance and adhere to the original intent of the Constitution makers, who envisioned a role for the executive in appointments.
4. Checks and Balances: The involvement of multiple branches of government was seen as a way to ensure checks and balances.
5. Address Diversity Concerns: The provision for one eminent person from marginalized communities or women was an attempt to promote diversity in the judiciary.

F. Criticisms of NJAC (from Judiciary's Perspective)

The NJAC faced strong opposition from the judiciary and a section of the legal fraternity, primarily on the grounds of compromising judicial independence.

1. Executive Dominance/Interference: Critics argued that the presence of the Law Minister and the two eminent persons (who would be government appointees) would give the executive undue influence over judicial appointments.
2. Threat to Judicial Independence: The core argument was that the NJAC would dilute the judiciary's primacy in appointments, thereby threatening its independence, which is a part of the basic structure doctrine.
3. Veto Power: The provision allowing any two members to veto a recommendation was particularly contentious, as it could enable non-judicial members to block judicial appointments.
4. Lack of Legal Expertise: The inclusion of non-judicial members was criticized on the grounds that they might lack the necessary legal expertise to assess the suitability of judicial candidates.
5. Violation of Basic Structure Doctrine: The Supreme Court ultimately struck down the NJAC on this ground.

4. Judicial Scrutiny and Landmark Judgment: The Fourth Judges Case

The constitutional validity of the 99th Constitutional Amendment Act, 2014, and the NJAC Act, 2014, was immediately challenged in the Supreme Court.

A. Fourth Judges Case (Supreme Court Advocates-on-Record Association and Another v. Union of India, 2015):

• Context: Petitions were filed by the Supreme Court Advocates-on-Record Association (SCAORA) and others, contending that the NJAC legislation damaged the basic structure of the Constitution by diluting judicial primacy in appointments.
• Ruling: On October 16, 2015, a five-judge Constitution Bench of the Supreme Court, by a 4:1 majority, struck down the 99th Constitutional Amendment Act and the NJAC Act as unconstitutional and void.
• Reasoning:
  • Violation of Judicial Independence: The majority held that the NJAC violated the basic structure of the Constitution by compromising judicial independence. The inclusion of the executive in the appointment process was seen as an encroachment on the judiciary's autonomy.
  • Basic Structure Doctrine: The Court reiterated that judicial independence is an essential component of the Constitution's basic structure and cannot be compromised under any circumstances.
  • Primacy of Judiciary: The Court found that the clauses of the amendment were inadequate to preserve the primacy of the judiciary.
  • Separation of Powers: The inclusion of the Law Minister in the commission impinged on the doctrine of separation of powers between the judiciary and the executive.
• Dissenting Opinion: Justice J. Chelameswar was the sole dissenting judge, who argued that the Collegium System lacked transparency and accountability and that the NJAC could have provided a check on "unwholesome trade-offs."
• Impact: The Supreme Court's decision led to the revival of the Collegium System for judicial appointments and transfers. While striking down NJAC, the Court acknowledged the flaws of the Collegium System and called for reforms to enhance its transparency and accountability.

5. Collegium vs. NJAC: A Comparative Analysis

6. Current Relevance and Ongoing Debates

Even after the striking down of the NJAC, the debate surrounding judicial appointments continues. The Supreme Court itself acknowledged the need for reforms in the Collegium System.

• Memorandum of Procedure (MoP): Following the Fourth Judges Case, the Supreme Court asked the government to prepare a revised Memorandum of Procedure (MoP) in consultation with the CJI to enhance transparency and accountability in the Collegium System. This MoP serves as the "playbook" for judicial appointments.
  • Proposed Reforms in MoP: Discussions have included setting eligibility criteria, establishing a secretariat for the Collegium, and addressing transparency issues. The government has also proposed clauses like "national security" and "larger public interests" as grounds for rejecting Collegium recommendations, which could grant it a "veto power."
• Executive-Judiciary Tensions: There are ongoing tensions between the executive and the judiciary over the appointment process, often concerning delays in approving Collegium recommendations.
• Calls for Reform: Various bodies, including the Supreme Court Bar Association (SCBA), continue to call for a more transparent, equitable, and merit-driven framework for appointing judges, addressing issues like under-representation of women and structural flaws.
• Judicial Vacancies: Despite the debates, high judicial vacancies persist across all levels of courts, contributing to the substantial backlog of cases.

7. Conclusion & Summary

The journey of judicial appointments in India from the executive-dominated "consultation" to the judiciary-controlled Collegium, and then the brief legislative attempt at NJAC, underscores the fundamental tension between safeguarding judicial independence and ensuring accountability and transparency in a democratic system.

The Supreme Court's decision to strike down the NJAC firmly established judicial independence as a non-negotiable aspect of the basic structure of the Constitution. However, the accompanying call for reforms within the Collegium System itself indicates an acknowledgment of its imperfections. The ongoing efforts to finalize a revised Memorandum of Procedure reflect a continuous quest for a balanced mechanism that can uphold the integrity and independence of the judiciary while also addressing legitimate concerns about its functioning, transparency, and diversity. The future of judicial appointments in India hinges on finding a viable middle ground that strengthens public trust in this vital pillar of democracy.

8. Diagrams, Tables & Conceptual Visuals

Flowchart: Appointment of Supreme Court Judges (Under Collegium System)

Explanation: This flowchart illustrates the typical process for appointing judges to the Supreme Court under the current Collegium System. The CJI, in consultation with four senior-most judges, recommends names. The government's role is primarily consultative; if the Collegium reiterates its recommendations, the government is constitutionally bound to make the appointments.

Organogram: Proposed NJAC Structure (Struck Down)

Explanation: This organogram visually represents the proposed six-member structure of the NJAC, as laid out in the 99th Constitutional Amendment Act. It highlights the inclusion of executive and eminent persons alongside judicial members, a key aspect that led to its striking down by the Supreme Court.

9. Interactive Q&A and Practice-Based Learning

A. Multiple-Choice Questions (MCQs)

1. Which of the following Supreme Court cases led to the formal establishment of the Collegium System for judicial appointments? a) S.P. Gupta v. Union of India (1981) b) Kesavananda Bharati v. State of Kerala (1973) c) Supreme Court Advocates-on-Record Association v. Union of India (1993) d) Minerva Mills v. Union of India (1980)

Correct Answer: c) Supreme Court Advocates-on-Record Association v. Union of India (1993) Explanation: The Second Judges Case (1993) famously interpreted "consultation" as "concurrence" and outlined the Collegium System, giving primacy to the CJI's opinion formed in consultation with senior judges.

2. The 99th Constitutional Amendment Act, 2014, which established the National Judicial Appointments Commission (NJAC), was declared unconstitutional primarily on the grounds of: a) Violating the right to equality (Article 14). b) Infringing upon the freedom of speech and expression (Article 19). c) Compromising the independence of the judiciary, a part of the basic structure of the Constitution. d) Exceeding the Parliament's power to amend the Constitution under Article 368.

Correct Answer: c) Compromising the independence of the judiciary, a part of the basic structure of the Constitution. Explanation: In the Fourth Judges Case (2015), the Supreme Court struck down the NJAC Act, holding that the inclusion of the executive in the appointment process violated the basic structure doctrine, particularly judicial independence.

3. What is the current composition of the Supreme Court Collegium for recommending appointments to the Supreme Court? a) Chief Justice of India + 2 senior-most Supreme Court judges b) Chief Justice of India + 4 senior-most Supreme Court judges c) Chief Justice of India + Union Law Minister + 2 senior-most Supreme Court judges d) Chief Justice of India + Attorney General of India + 2 senior-most Supreme Court judges

Correct Answer: b) Chief Justice of India + 4 senior-most Supreme Court judges Explanation: The Third Judges Case (1998) expanded the Supreme Court Collegium to include the CJI and four senior-most judges.

4. Which of the following statements about the Collegium System is INCORRECT? a) It is a judicial innovation and not explicitly mentioned in the Constitution. b) It aims to ensure judicial independence by minimizing executive interference. c) The government is always bound to accept the initial recommendations of the Collegium. d) It has faced criticism for lack of transparency and allegations of nepotism.

Correct Answer: c) The government is always bound to accept the initial recommendations of the Collegium. Explanation: While the government is bound to accept reiterated recommendations, it can initially raise objections or seek clarifications on the Collegium's choices.

B. Scenario-Based Questions

Scenario: Imagine a situation where the Supreme Court Collegium recommends a name for appointment as a High Court Judge, but the Central Government, after an Intelligence Bureau (IB) report, expresses strong reservations about the candidate's integrity and sends the recommendation back for reconsideration.

Question: What are the constitutional options available to the Collegium and the government in this scenario, and what is the likely outcome under the current system?

Detailed Answer:

Under the existing Collegium System, governed by the Memorandum of Procedure (MoP), the following options and likely outcomes would apply:

1. Government's Action: The Central Government is not bound to accept the initial recommendation of the Collegium. It can raise objections and seek clarifications, or even send the name back for reconsideration, often after receiving inputs like an Intelligence Bureau (IB) report. This is a part of the "consultative" process.
2. Collegium's Reconsideration: Upon receiving the government's reservations or the IB report, the Supreme Court Collegium (which would be involved in High Court appointments through the Supreme Court Collegium reviewing the High Court Collegium's recommendations) would reconsider the recommendation.
3. Collegium's Options:
   • Withdrawal of Recommendation: The Collegium may decide to withdraw the recommendation if it finds the government's objections to be valid and substantial.
   • Reiteration of Recommendation: If, after reconsideration, the Collegium still believes the candidate is suitable and finds the government's objections to be insufficient, it can reiterate the same name.
4. Likely Outcome (Reiteration): According to Constitution Bench judgments, if the Supreme Court Collegium reiterates the same names, the Central Government is bound to appoint them as judges. This binding nature of reiterated recommendations is a crucial aspect of the Collegium System, ensuring the primacy of the judiciary in appointments and protecting judicial independence.
5. Ongoing Debate: It's worth noting that the government has, in recent years, pushed for incorporating clauses like "national security" in the revised MoP, which could potentially grant it a "veto power" even over reiterated recommendations. However, under the currently established constitutional interpretation, the Collegium's reiterated recommendation is binding.

C. Match-the-following / Chronology exercises

Match the following Supreme Court cases with their primary outcome/impact on judicial appointments:

Answer Key:

1. C: S.P. Gupta v. Union of India (1981) declared that "consultation" did not mean "concurrence," giving primacy to the Executive.
2. D: Supreme Court Advocates-on-Record Association v. Union of India (1993) established that "consultation" means "concurrence," leading to the birth of the Collegium System.
3. A: In re Special Reference 1 of 1998 expanded the Collegium to include the CJI and four senior-most judges.
4. B: Supreme Court Advocates-on-Record Association v. Union of India (2015) struck down the NJAC as unconstitutional and revived the Collegium System.

Recommended Books

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• Indian Polity (English) by M Laxmikanth for UPSC CSE 2025 | 7th edition (latest) | Civil Services Exam - Prelims, Mains and Interview | State PSCs exams/ PCS exams - by M Laxmikanth
• Oswaal NCERT One For All Book for UPSC & State PSCs | Indian Polity Classes 6-12 - by Oswaal Editorial Board
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