OPINION | Collegium System: Power, process and persistent questions of accountability

The collegium’s power ensures that scrutiny is constant and controversy never far behind.

Any decision of the collegium, whether routine or contentious, inevitably makes news. Two recent instances illustrate this clearly. The High Court Bar Association of Allahabad formally opposed the Supreme Court Collegium’s proposal to appoint five retired judges to the Allahabad High Court on an ad hoc basis, describing the move as “inexplicable” and alleging that it departed from constitutional norms. Around the same time, the Supreme Court of India declined to entertain a writ petition challenging a recommendation said to have been made by the Madras High Court collegium. The petitioner contended that the recommendation was legally infirm because the second senior-most judge of the High Court was allegedly excluded from the collegium meeting, thereby rendering the process procedurally defective. The Supreme Court, however, observed that the issue was not justiciable.

These are not extraordinary events; however, they are reminders of the institutional weight the collegium carries. As the body entrusted with appointing judges to the Supreme Court and the High Courts, it is arguably the most powerful appointing authority within India’s constitutional framework. Its decisions shape the composition of the higher judiciary and, by extension, the direction of constitutional interpretation itself.

Yet, alongside this authority travels persistent criticism — over transparency, accountability, and the absence of broader representation in its functioning. Consequently, even limited opposition, whether from the Bar, litigants, or occasionally from within judicial circles, quickly becomes headline material. The collegium’s power, combined with the opacity often attributed to it, ensures that scrutiny is constant and controversy never far behind.

Constituent Assembly on Judicial Appointments

Safeguarding judicial independence was of utmost concern for the framers of the Indian Constitution. The method of appointment of judges was debated in great detail in the Constituent Assembly. Granville Austin, in his book The Indian Constitution: Cornerstone of a Nation, writes: “The members of the Constituent Assembly brought to the framing of the judicial provisions of the Constitution an idealism equalled only by that shown towards the fundamental rights.”

Similarly, George H. Gadbois Jr., in his book Supreme Court of India: The Beginnings, writes that the appointment process of judges to the higher judiciary was the subject of more debate and greater attention than any other of the twenty-four articles concerning the Supreme Court. Also, the maximum number of amendments proposed in the Constituent Assembly related to the article dealing with the appointment of judges.

Article 103 of the Draft Constitution stated that judges of the Supreme Court shall be appointed by the President after consultation with such of the judges of the Supreme Court and the High Courts in the States as may be necessary for the purpose. The requirement of “consultation” also became a matter of intense debate, as a majority of members wanted the consultation to be binding and to mean concurrence.

However, the Constituent Assembly did not wish to create what one of its members, T.T. Krishnamachari, called an “imperium in imperio” — an institution completely independent of the executive and the legislature and operating as a sort of superior body to the general body politic.

Dr B.R. Ambedkar was also against granting unfettered supremacy to the judiciary. The Constituent Assembly gave primacy to the executive, as consultation with the Chief Justice was not to be treated as concurrence. However, it was the ‘Second Judges Case’ that institutionalised the collegium system and established the primacy of the judiciary in judicial appointments.

Criticism of the Collegium

The collegium system has been criticised for its opacity, as its functioning remains a completely closed-door affair with no clearly defined selection procedure or qualification criteria. Allegations of nepotism have also been among the most prominent criticisms levelled against the system.

To address long-standing concerns about the functioning of the collegium, the incumbent government in 2014 enacted the Ninety-Ninth Constitutional Amendment to establish the National Judicial Appointments Commission (NJAC). The proposed NJAC, which included representation from outside the judiciary, was intended to oversee the appointment of judges to the Supreme Court and the High Courts. However, the constitutional validity of the Act was challenged in the Supreme Court, and in October 2015 the Court struck down the NJAC Act.

Concerns about representation and concentration of power in judicial appointments are not new; they were present even in the Constituent Assembly. Several members were anxious that the process of appointing judges to the higher judiciary should be as broad-based and consultative as possible, so that neither the executive nor any single constitutional authority could dominate it.

In his magisterial work The Framing of India’s Constitution, B. Shiva Rao records that amendments were proposed to widen the consultative base. One such proposal sought to make consultation with all judges of the Supreme Court obligatory, rather than limiting it to a narrower circle. The underlying concern was clear: judicial appointments must inspire institutional confidence and reflect collective wisdom.

Similarly, Shibban Lal Saxena moved an amendment suggesting that while the Chief Justice of India would be appointed by the President, the appointment should be confirmed by a two-thirds majority of both Houses of Parliament. This proposal reflected an alternative vision — one that emphasised democratic ratification and legislative oversight in the appointment of the highest judicial office.

Although these amendments were ultimately not adopted, they demonstrate that questions of representation, consultation, and accountability in judicial appointments have been integral to India’s constitutional discourse from the very beginning.

Instances of Lapses in Collegium Decisions

In his autobiography Justice for the Judge, former Chief Justice of India Ranjan Gogoi recounts instances that, in his view, revealed serious lapses within the collegium system itself.

He refers first to recommendations made in January 2018 by the Patna High Court collegium, then headed by the Chief Justice of that court. Four names were proposed for elevation, but three did not meet the prescribed income criteria and therefore could not have been recommended. The Supreme Court of India returned the proposal for reconsideration. However, when the High Court resubmitted six names, four again reportedly failed to meet the eligibility norms. Gogoi writes that his “discreet enquiries” suggested that the recommendations may not have been made fairly or strictly on merit.

The second instance concerned the proposed elevation of former Chief Justice of the Rajasthan High Court, Pradeep Nandrajog, to the Supreme Court. While the formal recommendation was yet to be made to the Law Minister, Justice Gogoi received a written communication drawing attention to a judgment delivered in November 2015 by a Bench presided over by Justice Nandrajog in the Delhi High Court. It later emerged that paragraphs 4 to 38 of the original judgment dated 27 November 2015 were a verbatim reproduction of a previously published article. An order dated 8 December 2015 acknowledged that a law intern had prepared a précis which was incorporated into the judgment, and upon discovering the overlap, the Bench passed a suo motu order deleting the relevant paragraphs and apologising to the authors of the article.

Justice Gogoi observed that while law clerks and interns may assist in research, they should not have a direct role in drafting judicial opinions. For him, these episodes underscored that concerns about transparency and accountability are not merely external criticisms of the collegium system, but challenges that can arise from within the institution itself.

In the context of the collegium system, noted jurist Fali S. Nariman, in his autobiography Before Memory Fades, recalls a case he won but wished he “would have lost” — the landmark ‘Second Judges Case’. It was this judgment that gave birth to the collegium system, taking away the Chief Justice of India’s primacy in judicial appointments and vesting the power in a panel of senior judges.

Initially comprising the CJI and the two senior-most judges, the collegium was later expanded through the ‘Third Judges Case’ to include the CJI and the four senior-most judges. Nariman, while criticising this arrangement, writes: “I don’t see what is so special about the first five judges of the Supreme Court. They are only the first five in seniority of appointment — not necessarily in superiority of wisdom or competence. I see no reason why all judges of the Supreme Court should not be consulted… The closed-circuit network of five judges should be disbanded.”

While Nariman’s criticism has often echoed in debates on the collegium, the fact remains that even three decades after the Second Judges Case, the closed circle of five judges continues to control the levers of judicial appointments.

(Views are personal, and do not represent the stance of this publication.)