Collegium vs NJAC: Judicial Appointments Debate in India Explained for UPSC

No topic in Indian constitutional law generates as much heat — and as little resolution — as judicial appointments. The current Collegium system has no mention in the Constitution's text. The National Judicial Appointments Commission (NJAC), which Parliament enacted with near-unanimous support, was struck down by the very court whose appointments it sought to reform. Over 250 vacancies persist across High Courts as of early 2026, and the promised Memorandum of Procedure (MoP) to improve transparency remains pending since 2015.

UPSC has asked this topic directly in Mains 2015 and 2017. Expect it again whenever judicial reform makes headlines.

Evolution: The Three Judges Cases

The Constitution, as originally drafted, gave the President the power to appoint Supreme Court and High Court judges “after consultation” with the Chief Justice of India and other judges (Articles 124 and 217). The word “consultation” became the battlefield.

First Judges Case: SP Gupta v. Union of India (1981)

A seven-judge bench held that "consultation" does not mean "concurrence." The President (effectively, the executive) had primacy in judicial appointments. The CJI's opinion was important but not binding.

This judgment gave the executive near-complete control over appointments for 12 years. Critics argued it led to politically motivated appointments and transfers. The Emergency-era supersession of Justice HR Khanna (who dissented in ADM Jabalpur, 1976) was still fresh in institutional memory.

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

A nine-judge bench overruled SP Gupta on the critical question. The Court held that "consultation" with the CJI effectively means "concurrence." The CJI's opinion, formed in consultation with the two senior-most judges of the Supreme Court, would have primacy in appointments.

This is where the Collegium system was born — not through legislation or constitutional amendment, but through judicial interpretation. The executive's role was reduced to raising objections, which the Collegium could override through reiteration.

Third Judges Case: Special Reference No. 1 of 1998 (1998)

President KR Narayanan made a Presidential Reference under Article 143 seeking clarity on the Collegium’s composition. A nine-judge bench expanded the Collegium to the CJI plus four senior-most judges of the Supreme Court. For High Court appointments, the Chief Justice of the concerned High Court would initiate recommendations.

The Court also laid down that the Collegium should maintain written records of reasons for its recommendations — a guideline honored mostly in the breach.

How the Collegium System Works

The process for Supreme Court appointments:

1. The CJI initiates a proposal after consulting the four senior-most SC judges (the Collegium)
2. The Collegium discusses and reaches a recommendation by consensus (though the CJI's view carries special weight)
3. The recommendation is sent to the Union Law Minister, who forwards it to the Prime Minister, who advises the President
4. If the government has objections, it sends the file back with its concerns
5. If the Collegium reiterates its recommendation, the government is constitutionally bound to accept it

For High Court appointments, the process involves the Chief Justice of the concerned High Court, who consults two senior-most HC judges, then sends recommendations to the CJI. The SC Collegium reviews and forwards to the government.

Common student mistake: Writing that the Collegium is a "constitutional body." It is not. The Collegium has no constitutional or statutory basis. It was created entirely through judicial interpretation in the Second and Third Judges Cases. The Constitution mentions only "consultation" with the CJI.

Problems with the Collegium System

Opacity

No written criteria exist for selection. The Collegium does not publish reasons for recommending or rejecting candidates. When Justice KM Joseph's elevation to the Supreme Court was initially deferred in 2018, the Collegium gave no public explanation. The process happens behind closed doors.

Delays and Vacancies

As of March 2026, High Courts across India operate with over 250 vacancies against a sanctioned strength of approximately 1,114. Some recommendations take 2-3 years to process. The government sometimes delays clearance; the Collegium sometimes takes months to formulate proposals. Neither side has clean hands.

No Accountability

The Collegium is answerable to no one. Unlike a statutory body, it has no rules of procedure, no annual report, and no oversight mechanism. When recommendations are controversial — as with the elevation of certain judges with allegations of misconduct — there is no forum for public scrutiny.

Lack of Diversity

Critics point out that the Collegium has historically favored candidates from established legal families and elite backgrounds. Representation of women, SC/ST communities, and OBC candidates on the higher judiciary remains disproportionately low. As of 2025, only 4 women had ever served as Supreme Court judges.

"Uncle Judge" Syndrome

The expression, coined by Justice Ruma Pal in 2011, refers to the tendency of the Collegium to favor familiar candidates — those known personally to sitting judges. Merit can be overlooked in favor of social proximity.

The NJAC: What It Proposed

Legislative Framework

Parliament passed the 99th Constitutional Amendment Act and the NJAC Act in August 2014 with overwhelming support. The Rajya Sabha passed it unanimously. The Lok Sabha recorded only one dissenting vote. Sixteen state legislatures ratified the Amendment (more than the required half).

NJAC Composition

The two "eminent persons" would serve three-year terms and would not be eligible for reappointment. One of the two eminent persons would be nominated from SC/ST, OBC, minorities, or women.

How NJAC Would Have Worked

• Any two members could veto a recommendation
• The Commission would recommend appointments to the President
• The NJAC would replace the Collegium entirely
• Criteria for appointment would be prescribed by regulations

Supreme Court Advocates-on-Record Association v. Union of India (2015)

A five-judge Constitution Bench struck down the 99th Amendment and the NJAC Act on October 16, 2015, by a 4:1 majority. Justice JS Khehar wrote the lead opinion. Justice Kurian Joseph concurred but with reservations about the Collegium. Justice Chelameswar delivered a lone dissent.

Why the Court Struck Down NJAC

Primary ground: Independence of the judiciary is a basic structure feature. The Court held that executive participation in judicial appointments — through the Law Minister and the two eminent persons (selected partly by the PM) — would compromise this independence.

Specific concerns:

• The veto power of any two members meant the Law Minister plus one eminent person could block any appointment, effectively giving the executive a veto
• The eminent persons had no defined qualifications and would be selected through a process involving the executive
• The NJAC did not guarantee judicial primacy in the appointment process, unlike the Collegium where the judiciary has the final word through reiteration
• Historical experience (pre-1993) demonstrated that executive control led to politically motivated appointments

Justice Chelameswar's Dissent

Justice Chelameswar's dissent is one of the most cited minority opinions in recent Indian constitutional law. He argued:

• The Collegium system itself has no constitutional basis and was created by judicial overreach
• Democracy requires checks and balances — the judiciary appointing its own members violates this principle
• The NJAC provided adequate safeguards against executive domination
• Opacity of the Collegium is a greater threat to judicial independence than a transparent commission

He wrote: "Transparency is the greatest enemy of arbitrariness and the best friend of independence."

Common student mistake: Writing that the NJAC was struck down because it was "unconstitutional." The precise holding is that it violated the basic structure of the Constitution by threatening judicial independence. A constitutional amendment can be struck down only on basic structure grounds (Kesavananda Bharati, 1973), not for ordinary unconstitutionality.

After the Verdict: The Memorandum of Procedure

Following the NJAC judgment, the Supreme Court itself acknowledged that the Collegium needed reform. Justice Khehar invited suggestions for improving the system. The Court directed the government and judiciary to finalize a new Memorandum of Procedure (MoP) to govern Collegium functioning.

The MoP was supposed to introduce:

• Eligibility criteria for appointment (defined parameters instead of subjective assessment)
• Transparency norms (public disclosure of reasons for recommendations)
• A complaints mechanism against candidates
• Timelines for processing recommendations

As of March 2026, the MoP remains unfinalized. The government and judiciary have exchanged drafts but disagree on key provisions, particularly the government's demand for a "national security" veto on appointments.

Collegium vs NJAC: Comparison Table

The Ongoing Debate

The fundamental tension remains unresolved. The judiciary insists that any reform must preserve its primacy in appointments. The executive argues that no institution should select its own members without external checks. Both sides have legitimate points.

The Vice President and Law Minister have publicly criticized the Collegium system multiple times since 2022. The CJI has responded by pointing to the basic structure doctrine. Meanwhile, vacancies mount, cases pile up, and litigants wait.

Some reform proposals gaining traction:

• All-India Judicial Service (Article 312) for lower judiciary standardization
• Judicial Appointments Commission with judicial majority (modified NJAC with 4 judges + 2 non-judges)
• Fixed timelines for government clearance of Collegium recommendations (currently no deadline)
• Public hearings for Supreme Court appointments (as practiced in the US and South Africa)