For the past few months, the government and the Supreme Court have been engaged in an unusually public war of words over the judicial selection process. Should an elite cabal of judges decide who gets to serve on the land’s highest courts? Or should the government have a role in picking judges—as a representative of the people’s will?
Researched by: Sara Varghese & Nirmal Bhansali
Wait, how do we select our judges?
Ah, that's the million-dollar question that has pitted the union government against the Supreme Court through independent India’s history. Who should appoint judges to the Supreme Court and the High Courts? The answer has shifted wildly from one era to another.
The Constitution: is vague on the matter of selecting judges. According to Article 124(2), “every Judge of the Supreme Court shall be appointed by the President” after “consultation” with the judges of the Supreme Court and the high courts, “as the President may deem necessary.” The interpretation of this language has since become a point of contention:
Article 123 says that the President of India shall appoint judges of the Supreme Court after “consultation” with the CJI. However, Article 74 also states that the President is supposed to carry out her functions on the “aid and advise” of the Council of Ministers. This raises the obvious question — in appointing judges, if the CJI says one thing and the Council of Ministers says another, whom should the President listen to?
As a result, power often favoured the side that was both able and willing to grab it.
The Nehru years: gave primacy to the Supreme Court. It established two key conventions. One, the appointment of the Chief Justice of India will always be determined by seniority—removing the possibility of bias or tampering. And two, the CJI’s recommendations for a nominee to the judiciary will always be honoured.
The Indira years: Of course, all of this went for a toss when his daughter ascended to power. The Supreme Court first provoked the ire of the government in 1970 when it struck down the move to nationalise private banks:
However, in the 70s, certain sections of the ruling Congress party argued that judges (by virtue of their social class) were insufficiently ‘committed’ to constitutional values and the solution, therefore, was to appoint judges who were more in tune with those values.
The Congress government cast aside the seniority principle twice to appoint suitably tame CJIs—who upheld the unlimited power of the Parliament to amend the Constitution. During the Emergency, the Supreme Court held that the government was free to hold people in jail without producing them in court—because the fundamental right to liberty was suspended during an Emergency!
Enter, the Collegium: In the decades that followed, the judiciary worked steadily to claw back its power. And Supreme Court did so decisively in 1993—in the Second Judges Case:
The nine-judge bench held that the word “consultation” in Article 124(2) should be read to mean “concurrence” or agreement of the CJI. “The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter,” the verdict reasoned.
According to the ruling, the CJI would consult two of his senior-most judges on appointments. The Third Judges Case increased the number of advisors to four senior-most justices—which constitutes what we call the Collegium today.
So how does this Collegium work?
Today, on paper at least, the judiciary is supposed to have the only and final say. But that’s not how it works in practice.
The basic deets: The Collegium led by the CJI recommends judges to be elevated to Supreme Court. The process is exactly the same for High Courts as well. The recommendations are passed along to the Law Minister—who sends them to the Prime Minister who then “advises” the President on the matter. For the most part, the Collegium calls the shots.
But, but, but: The government can make things difficult. It has the right to send back a recommended name—raising objections or seeking clarifications. But if the Collegium digs in its heels, then the government has to accede to its wishes. The other option for an unhappy government is to simply drag its feet. In October, then CJI NV Ramana offered this damning stat:
Ramana had said that since May, the collegium has recommended 106 names for judges and nine for chief justices. Of these, Ramana said that the government had cleared the names of only seven judges and one chief justice.
Also this: The Court often ducks open conflict with the government by skipping controversial names. For example, in 2021, the CJI NV Ramana-led Court omitted Akil Kureshi—the second-most senior high court judge—because he’d recommended Amit Shah be sent to custody in a police encounter case back in 2010.
The Kirpal stalemate: is a good example of why the judiciary doesn’t always prevail in practice. The government and the Supreme Court are presently locked in a battle over the High Court nomination of Saurabh Kirpal—a highly respected and openly gay lawyer. In January, the Court openly called out the government—making public the flimsy basis of its objections:
[I]t appears that there are two objections to the recommendation which was made by the Collegium of this Court on 11 November 2021 approving the name of Shri Saurabh Kirpal namely: (i) the partner of Shri Saurabh Kirpal is a Swiss National, and (ii) he is in an intimate relationship and is open about his sexual orientation.
The government also claimed that his “passionate attachment to the cause of gay-rights” did not rule out the possibility of bias. The Court dismissed all the objections but Kirpal’s nomination—first put forward in 2017 for the Delhi High Court—is still stuck in limbo.
So the government wants to replace the Collegium?
Well, it’s not just this government. Previous regimes have also done their best to wrest back power from the Supreme Court. Both the Vajpayee and Manmohan Singh governments did their best to set up a national judicial commission—to replace the Collegium. But neither made it past the Parliament—until the Modi government swept into power in 2014 with a significant majority.
The big NJAC move: In August 2014, the government quickly passed a constitutional amendment that set up a National Judicial Appointments Commission. The NJAC would now make all judicial appointments—for both the Supreme and High Court. The commission would be composed of the CJI, two senior-most Supreme Court judges, Law minister and two ‘eminent’ persons. These would be picked by a separate three-person committee composed of the PM, CJI and the leader of the Opposition—and at least one of them would be from a marginalised group.
Most importantly: The Act allowed any two members to veto a nomination—which meant that the Law minister in cahoots with one other member could block the judiciary’s nomination.
The big NJAC fail: The NJAC Act was speedily ratified by 16 state legislatures and received the assent of the President in December 2014. And it became law by April—suggesting that the government had won the battle.
But in October, the Supreme Court struck down the amendment—declaring it “unconstitutional” and “bad in law,” The ruling held the NJAC violated the “basic structure of the constitution”—a precedent that holds that the Parliament cannot alter essential constitutional features such as the separation of powers.
So this is just another power grab by the government?
Yes but that doesn’t mean there aren’t valid problems with the Collegium.
One: Law Minister Kiren Rijiju has called the collegium system “opaque and not accountable”—and he is entirely right. The Collegium does not share any clear criteria that guides its selection. As Gautam Bhatia points out:
Candidates are not interviewed, and the collegium’s deliberations are not public (unlike in countries such as South Africa and Kenya, where interviews take place and are public), and an attempt a few years ago to make the collegium’s minutes transparent was swiftly nixed. Apart from informal rumours and discussions, we do not know the bases upon which the collegium appoints judges.
There have been a number of nominees whose integrity and/or talent has been questionable—but were well-connected to the CJI. In fact, it is this lack of transparency that allows the Court and the government to cut deals behind closed doors on nominees.
Two: The Collegium’s decisions are treated as sacrosanct and beyond challenge—even when clearly suspect. Take the latest instance of L Victoria Gowri—who was sworn in as a Madras High Court judge yesterday. She has openly made hateful statements such as: “Like Islam is green terror, Christianity is white terror”—and claimed that both communities are engaged in “love jihad.” And yet the challenge to her appointment was struck down by the Supreme Court:
"I don't think we are in a position to say this is a question of eligibility. It is more of a question of suitability. Two, we can't direct the collegium," the bench said, adding that to assume that the collegium has not taken these things into account "may not be appropriate.”
But the problem is that no one knows how the Collegium decides either suitability or eligibility. We are never told why making openly hateful statements isn’t a good enough reason to reject a nomination.
Three: The government has described the Collegium as imperium in imperio (empire within an empire) within the Supreme Court. And it's not wrong on that count either. The judiciary may be independent but it is far from representative.
Of the 28 sitting judges at the Supreme Court, there are three women, one Muslim, one Parsi, one Christian and two Dalit judges. Only three of the 25 Supreme Court justices chosen since 2014 have been women. An even more dismal stat: 79% of all high court judges appointed in the past five years (2018 to 2022) are from privileged castes. And yet these justices preside on the issues that affect the most marginalised—without even the basic accountability that elections ensure.
Four: The Collegium system is just too slow. The government complains that the courts almost never send their recommendations six months in advance of a vacancy—as required by law. For example, there are 332 empty High Court judgeships, but the High Court Collegiums have only made 146 (44%) recommendations. And then the Supreme Court often drags its feet on approving the lower court’s nominees. OTOH, as the apex court points out, the government is often the source of delays—delaying action on persons who are not “palatable” to it.
The bottomline: Despite all the sabre-rattling, the government recently pushed forward five recommended names for the Supreme Court—marking a victory for the Collegium. But it has a brute majority in Parliament if it wants to revive NJAC in some other form. Then again, the Court has hardly proved difficult or inconvenient so why bother?
Reading list
The best reading on this subject is in The Hindu and behind a paywall. If you have a subscription, we recommend its explainers on the ‘basic structure’ doctrine and the Collegium vs NJAC debate. But you can check out The Quint’s guide to the NJAC—and Mint’s summary of the Supreme Court’s arguments against the NJAC. The Vidhi Centre for Legal Policy has a balanced critique of the Collegium system—while Gautam Bhatia in Hindustan Times parses the government’s argument against the Collegium. CJP has the best paper on the lack of diversity in the Supreme Court.
