Examine the debates on the appointment procedure of judges to the higher judiciary in India. (2014, 15 Marks)
Who chooses judges decides how independent, and how accountable, a court will be. The Constitution settled the matter with one word — the President appoints after “consultation” (Articles 124(2), 217) — and the debate since is over whose voice has primacy.
How the procedure shifted
| Stage | Position |
|---|---|
| S. P. Gupta (1981) | Consultation is not concurrence; executive primacy |
| Second Judges Case (1993) | CJI’s collective opinion binding: the collegium |
| Third Judges Reference (1998) | CJI plus four senior-most judges |
| 99th Amendment, NJAC Act (2014) | Six-member commission; any two members can veto |
| SCAORA v. Union of India (16 Oct 2015, 4:1) | NJAC void; collegium revived |
The case for judicial primacy
- Independence as basic structure: the majority held that the Law Minister’s seat and the veto of any two members — possibly the two undefined “eminent persons” — let non-judicial members override the three judges.
- History: the supersessions of 1973 and 1977 and Emergency transfers showed what executive primacy can do.
- Conflict of interest: the government, the largest litigant, should not pick its own judges.
The case against the collegium
- Opacity: no criteria, minutes or reasons, so selection and rejection escape scrutiny. Justice J. Chelameswar, dissenting in 2015, found collegium proceedings “absolutely opaque” and saw that as the real threat to independence.
- Democratic legitimacy and balance: the 99th Amendment passed almost unanimously and was ratified by sixteen states; striking it down let judges settle a question in their own cause. Pratap Bhanu Mehta cites the collegium as proof of judicial sovereignty.
- Diversity: of 698 High Court judges appointed from 2018 to early 2025, 161 were SC, ST or OBC and 108 were women (Law Ministry, February 2025) — an argument for a wider selecting body.
- Checks and balances: vesting the whole appointing power in any one organ departs from the design.
The stalemate after 2015
The Court invited suggestions for a revised Memorandum of Procedure, which remains unfinalised after a decade. The collegium began publishing its resolutions in October 2017. The executive’s answer has been delay — sitting on reiterated names and notifying some from a list while holding back others. In November 2022 Law Minister Kiren Rijiju called the collegium “alien” to the Constitution; Vice-President Jagdeep Dhankhar called the NJAC verdict a severe compromise of parliamentary sovereignty; and in January 2023 the government sought its own nominee in the collegium’s search process. The Justice Yashwant Varma inquiry (2025–26) has added judicial accountability to the debate.
Comparative models
- United Kingdom: the Judicial Appointments Commission (Constitutional Reform Act 2005; operational 2006) has a lay chair and mixed membership, and the Lord Chancellor may reject a choice only on limited grounds.
- South Africa: the Judicial Service Commission combines judges, lawyers, academics and legislators and interviews candidates in public.
Both keep judges independent through plural, open selection.
Conclusion
The debate is not independence versus accountability but how to secure both. Executive primacy failed in 1973–77; unchecked judicial primacy has produced opacity and a narrow bench. A body with a judicial majority, published criteria, open reasons and binding timelines on the government would answer both concerns.