Critically examine the arguments being advanced for review of the present system of appointment of judges to the higher judiciary of the country. (2009)
Articles 124(2) and 217 require the President to appoint judges after “consultation” with the Chief Justice of India (CJI). The Second Judges Case (1993) read consultation as concurrence and the Third Judges Case (1998) vested the choice in a collegium of the CJI and four senior-most judges. By 2009 — the year the collegium’s recommendation of Justice P. D. Dinakaran to the Supreme Court ran into allegations of land-grabbing — the demand for review had become broad-based.
The arguments for review
- No textual basis: the collegium appears nowhere in the Constitution. B. R. Ambedkar had rejected a CJI veto as vesting in one person a power denied to the government; judges choosing judges inverts that design.
- Opacity: no published criteria, minutes or reasons for selection or supersession. Former judge Ruma Pal later called the process “one of the best kept secrets in this country” (2011).
- Nepotism: the Law Commission’s 230th Report (August 2009) spoke of complaints about “Uncle Judges” and urged that judges whose relatives practise in a High Court not sit there.
- No accountability or system: no secretariat, database or assessment of a candidate’s record; the Dinakaran and Soumitra Sen episodes showed how a closed process can miss what an open one would catch.
- Delay and vacancies: stand-offs over files kept High Court benches short.
- Narrow recruitment: the bench stays drawn from a small social and professional stratum; the “distinguished jurist” route of Article 124(3) has never been used.
- An institutional alternative existed: the Law Commission’s 121st Report (1987) proposed a National Judicial Service Commission; the NCRWC (2002) a National Judicial Commission of the CJI, two senior judges, the Law Minister and an eminent person; the Second ARC (2007) a National Judicial Council chaired by the Vice-President.
Examining the arguments
- The executive’s record is worse: the supersessions of 1973 (after Kesavananda) and January 1977 (Justice H. R. Khanna), and Emergency-era punitive transfers, are why the Court took the power in 1993. The government is also the largest litigant, so executive choice is itself a conflict of interest.
- Independence is basic structure: any review must keep the judiciary decisive, or it trades one danger for a greater one.
- Diagnosis versus remedy: opacity, nepotism and missing criteria are defects of procedure, curable by a published Memorandum of Procedure and secretariat without shifting primacy.
- The critics’ own record: after the 99th Amendment and NJAC Act (2014) were struck down on 16 October 2015 (4:1), the executive answered with delay — sitting on reiterated names, segregating lists, and leaving the Memorandum unfinalised for over a decade. On 1 July 2026, 341 of 1,122 High Court posts (30.4%) were vacant.
- Yet the case for review has strengthened: of 650 High Court judges appointed from 2018 to December 2023, 492 were from the general category, with 23 SC and 10 ST judges (Law Minister, Rajya Sabha, 7 December 2023). The Justice Yashwant Varma affair — cash found at his residence in March 2025, his resignation in April 2026, and a statutory inquiry report in May 2026 finding the charges proved — revived the question of who vets judges. Justice J. Chelameswar‘s NJAC dissent, calling collegium proceedings opaque and inaccessible, still frames the critique.
Conclusion
The arguments for review are largely valid on transparency, diversity and accountability, but weaker as a case for executive control, which Indian experience discredits. The defensible course is to reform the collegium, not replace it: statutory criteria, a permanent secretariat, reasons on record, binding timelines on both branches and a consultative non-judicial voice — independence secured through openness rather than secrecy.