Concerns over the collegium system

Why in news?

Retired SC judge Sanjay Kaul said former CJI Chandrachud may have discussed judicial appointments with the Centre before collegium meetings. Justice Kaul described the alleged practice as seeking the government’s ‘pre-approval’ of names, which he said erodes the judiciary’s autonomy.

UPSC Relevance

Prelims – Articles 124, 217, 222, 224A; Judges cases; 99th Constitutional Amendment; NJAC; Memorandum of Procedure; basic structure.

Mains – GS2: Structure, organisation and functioning of the Judiciary.

Constitutional provisions

• Article 124(2) – Judges of the Supreme Court are appointed by the President after consultation with the CJI (and other judges as the President thinks necessary).
• Article 217(1) – High Court judges are appointed by the President after consulting the CJI, the Governor of the State and the Chief Justice of that High Court.
• Article 224A – Retired judges can be requested to sit as ad hoc judges in High Courts.
• Key point – The word used in the Constitution is ‘consultation’, not ‘concurrence’. The word ‘collegium’ does not appear anywhere in the Constitution.

How the collegium evolved – the Judges cases

How the collegium works

• Composition – For the Supreme Court: CJI and four senior-most judges. For High Courts: CJI and two senior-most judges. The High Court collegium (Chief Justice and two senior-most judges) starts the proposal for HC judges.
• Memorandum of Procedure (MoP) – Prepared by the Union Law Ministry in line with the Judges cases. It lays down the steps of the appointment process.
• Process – The collegium recommends names, the Centre gets an Intelligence Bureau (IB) report and can return the names once with objections. If the collegium reiterates them, the appointment must be made.
• Role of government – Limited to raising objections and seeking reconsideration. In practice, it also delays by sitting on files, since there is no fixed deadline in the MoP.

Merits of the collegium system

• Judicial independence – Keeps appointments away from political pressure. Judges who decide cases against the government should not owe their posts to it.
• Expertise – Judges are best placed to judge the legal ability and conduct of lawyers and lower court judges they have seen at work.
• Check on executive – The government is the biggest litigant in India. Giving it control over appointments would be a conflict of interest.
• Separation of powers – Protects the judiciary as a separate and equal organ of the State.
• Stability – The system has worked for over three decades and has produced many respected judges.

Demerits of the collegium system

• Lack of transparency – No published criteria for selection, no record of discussions and little explanation of why one person is chosen over another.
• No accountability – Judges appoint judges, and no outside body checks the decisions. It is often called ‘judges choosing judges’.
• Nepotism – ‘Uncle judge syndrome’ – Relatives of sitting or retired judges are seen to be favoured. Law Commission’s 230th Report (2009) flagged this problem.
• Lack of diversity – Women, SC/ST/OBC and minorities remain poorly represented. Data given by the Law Ministry to a parliamentary panel in 2023 showed nearly 79% of HC judges appointed from 2018 to 2023 were from the general category.
• Delays and vacancies – Disagreements between the collegium and the government, and slow processing, leave many High Court posts vacant and add to pendency.
• Informal executive influence – As the current episode shows, the government can still shape outcomes through back-channel talks or by sitting on files, without any public record.
• No constitutional basis – The system was created by judicial interpretation, not by the Constitution or a law passed by Parliament.

Committee recommendations on appointment of judges

Recent reforms and developments

• Publishing resolutions (2017) – The collegium started uploading its recommendations on the Supreme Court website. In 2023, it published detailed reasons for rejecting the government’s objections to some names.
• Timelines (2021) – In the PLR Projects case, the Court said the IB report should be sent within 4 to 6 weeks and the Centre should act within 8 to 12 weeks. Reiterated names should be appointed within 3 to 4 weeks.
• Interaction with candidates (2024) – The collegium began meeting High Court candidates in person before recommending them, instead of relying only on files and reports.
• Relatives of judges – In 2025, the collegium reportedly discussed not recommending close relatives of sitting or retired judges.
• Public disclosure (2025) – The Supreme Court decided to put judges’ asset declarations on its website. It also published the appointment process and details of recent HC appointments, including whether the appointee was related to a judge.
• Ad hoc judges (2025) – The Court relaxed conditions under Article 224A so that High Courts with heavy pendency can appoint retired judges as ad hoc judges for criminal appeals.
• Pending gap – The revised MoP has still not been finalised more than ten years after the NJAC judgment.

International practices

Way forward

• Finalise the MoP – Fix clear criteria for merit, seniority and diversity, and set binding timelines for both the collegium and the government.
• Formal channel, not back-channel – Any consultation with the executive should be on record and part of the process, not informal pre-clearance.
• Permanent secretariat – A body to maintain a database of eligible candidates, collect inputs and assess candidates in a structured way.
• Diversity – Consciously widen the pool to include women, SC/ST/OBC, minorities and lawyers from smaller towns.
• Revisit NJAC in a new form – A broad-based commission with representatives from the judiciary, legislature, Bar Council and academia, as in South Africa and the UK, while giving the judiciary a veto to protect independence.
• Cooling-off and disclosure – Clear rules on recusal when relatives are being considered, and regular public reporting of appointments data.

Judicial independence is meant to protect citizens, not judges. A system that is independent but opaque loses public trust, so the real task is to keep the executive out while letting sunlight in.

Practice MCQ 

Q1. Consider the following statements:

Statement-I: The Union Government is bound to appoint a person whose name has been reiterated by the collegium.

Statement-II: The word ‘collegium’ is mentioned in Article 124 of the Constitution.

Which one of the following is correct in respect of the above statements?

(a) Both Statement-I and Statement-II are correct and Statement-II explains Statement-I

(b) Both Statement-I and Statement-II are correct but Statement-II does not explain Statement-I

(c) Statement-I is correct but Statement-II is incorrect

(d) Statement-I is incorrect but Statement-II is correct

Answer: (c)

Explanation: Statement-I is correct. Under the Judges cases and the Memorandum of Procedure, the government can return a name once, but a name the collegium reiterates must be appointed. Statement-II is incorrect, because the word ‘collegium’ does not appear anywhere in the Constitution. The system was created through judicial interpretation.

Mains Practice Question

“The collegium system has protected the independence of the judiciary but at the cost of transparency and accountability.” Critically examine. Suggest reforms in the light of recommendations of various committees and recent steps taken by the Supreme Court. (15 marks, 250 words)

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