The Collegium System Versus the Executive: A Standoff Neither Side Can Fully Win

Nowhere in the Constitution of India does the word "collegium" appear. Article 124 says judges of the Supreme Court are appointed by the President "after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary," language that on its face gives the executive primacy, with judicial consultation as an advisory input rather than a binding one. That the system now operates almost the opposite way — with a collegium of senior judges effectively deciding appointments and the executive holding a limited power of return, not veto — is entirely a product of Supreme Court interpretation, delivered across three judgments collectively known as the Three Judges Cases, decided in 1981, 1993 and 1998.

How "consultation" became "concurrence"

The First Judges Case in 1981 actually upheld the executive's primacy, holding that "consultation" did not mean "concurrence" and that the President's view could prevail even over judicial objection, provided the consultation was genuine. This is worth remembering because it means the collegium system is not simply an original constitutional design that the executive has periodically tried to encroach upon; the direction of encroachment initially ran the other way. The Second Judges Case in 1993 reversed this, holding that the Chief Justice of India's opinion, formed after consulting a plurality of senior judges, would have primacy, effectively inventing the collegium mechanism through judicial reinterpretation of the same constitutional text that a bench twelve years earlier had read to mean the opposite. The Third Judges Case in 1998, delivered in response to a presidential reference seeking clarification, refined the mechanism further, specifying that the collegium should comprise the Chief Justice and the four senior-most judges of the Supreme Court for appointments to that court. The point is not that this evolution was illegitimate — courts routinely refine doctrine over time — but that the system's foundational claim to primacy rests on the judiciary's own interpretation of an ambiguous consultative clause, adopted specifically in the years following the Emergency, when the memory of a compliant judiciary and an executive that had tried to supersede judges on grounds of "committed" ideology was still fresh and directly motivated the shift.

The argument for judicial primacy, taken seriously

The case for collegium-style primacy is not merely institutional turf protection, though critics often reduce it to that. The Emergency-era history is genuinely instructive: in 1973 and again in 1976, the government of the day superseded senior judges for the position of Chief Justice specifically because those judges had ruled, or were expected to rule, against the government's interests, an explicit and public assertion that judicial appointments should track a government's assessment of a judge's "commitment" to its own policy programme. A judiciary that had just lived through that episode had genuine grounds to conclude that unmediated executive control over appointments creates a structural incentive for a government to pack the bench with pliant judges, and independence of the judiciary from the executive is itself listed among the elements of the Constitution's basic structure. That said, the case for judicial primacy is a case for insulation from executive pressure; it is a considerably weaker case for the specific mechanism India actually adopted, in which judges select judges with almost no external input, transparency or accountability for individual decisions.

What NJAC tried to do, and why it failed

The National Judicial Appointments Commission Act of 2014 attempted a different balance: a six-member commission comprising the Chief Justice, two senior judges, the Union Law Minister, and two "eminent persons" selected by a committee that itself included the Prime Minister and the Leader of the Opposition, with any two members holding an effective veto over a proposed appointment. The amendment enabling it passed both houses of Parliament with near-unanimous support and was ratified by more than half the state legislatures, a degree of political consensus rarely achieved on any constitutional amendment. The Supreme Court struck it down in 2015 by a four-to-one majority, holding that including the Law Minister and the "eminent persons" — appointed through a process involving political executives — compromised judicial primacy in a manner that violated the basic structure's protection of judicial independence, and further holding that the veto mechanism could allow non-judicial members to block an appointment based on judicial merit for reasons unrelated to it. The lone dissenting judge, Justice J. Chelameswar, wrote that the collegium system itself lacked transparency and accountability to a degree that undermined public confidence, an argument that even many defenders of judicial independence in principle have found difficult to fully rebut in practice.

The transparency problem the ruling did not solve

Whatever one concludes about NJAC's specific design, striking it down did not address the collegium's own most persistent criticism: its decisions on individual appointments and transfers are made in closed-door meetings, historically without published reasons, and the limited disclosure of resolutions that began after 2017 still falls well short of anything resembling a public record explaining why one candidate was selected over another. This matters beyond abstract governance principle, because it creates genuine room for the perception, voiced by lawyers and bar associations across the political spectrum at different points, that the collegium's decisions are shaped by personal networks, seniority politics among judges themselves, or regional and institutional loyalty as much as by demonstrated judicial merit — a perception that undermined public confidence just as surely as executive interference would, even if the specific failure mode is different.

The standoff since 2015: return, delay and impasse

What has actually happened since NJAC was struck down is neither restored judicial primacy in a clean form nor executive dominance, but a prolonged practical standoff. The government retains the power to return a collegium recommendation once for reconsideration; if the collegium reiterates the same name, the government is, per the Court's own stated position, expected to make the appointment, but in practice several reiterated recommendations have sat with the government for many months without formal action, an informal delay tactic that achieves through inaction much of what a formal veto would achieve through explicit refusal, and one the Supreme Court itself has periodically expressed frustration with in open court without a clear enforcement remedy against the executive's inaction.

Two systems, both missing something essential

Neither side of this argument, examined honestly, has a fully satisfactory answer. The collegium's defenders are right that judicial appointments insulated from direct political control matter enormously to a judiciary's willingness to rule against the government of the day, and the Emergency-era precedent for why that insulation was built is not a hypothetical concern invented after the fact. NJAC's defenders are equally right that a body of unelected judges selecting their own successors, with no published criteria and only recent, partial moves toward transparency, sits uneasily with basic democratic accountability, and that some external input need not automatically compromise independence if designed carefully enough. India has not yet found, and arguably has stopped seriously looking for, a design that secures judicial independence from the executive without simply relocating the opacity problem from one branch of government to another.