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Q. Stalemate in appointing judges: Why India needs a new, fair and transparent mechanism for appointment of judges of higher judiciary?
Jul 12, 2016 Related to : GS Paper-2

Ans :


Presently as many as 470 out of 1091 positions of High Court judges are vacant. The justice system is caught in a tussle between the collegium of Supreme Court justices and the government over who has the final say on appointing judges.

Appointment of Judges in India-

At present according to ruling of third Judges Case 1998, a judge is appointed to the Supreme Court by the President of India on the recommendation of the collegium, a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. And similarly judge to the High Court is appointed on the recommendation of the collegium, which also includes senior most judge of the concerned high court.


  • According to article 124 of the Indian constitution, the President should appoint Supreme Court judges after consultation with such judges of High Courts and the Supreme Court as he/she may deem necessary. The Chief Justice of India is to be consulted in all appointments barring his/her own.
  • Similarly article 217, which deals with the appointment of High Court judges, says the President should consult the CJI, Governor, and Chief Justice of the High Court concerned. Neither of the above provisions speaks about a collegium.
  • Collegium system evolved through “Three Judges Cases’ of 1982, 1993, 1998. Since then judges are appointed by judiciary itself. Executives and Legislature does not have any critical role in the process of appointment.
  • Recently Constitution bench of Supreme Court struck down the National Judicial Appointments Commission (NJAC), body which would have been responsible for the appointment and transfer of judges to the higher judiciary and declared it as unconstitutional.

Issues with Collegium System-

  • Collegium system is a closed door affair without a formal and transparent system, created apprehensions about the process of appointment.
  • Judiciary appointing its own members goes against the principle separation of powers and principle of check and balance by one branch on another. It shows judicial supremacy over the other branches.
  • The limitation of the collegium’s field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.
  • The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees.


  • The selection process of judges has to be transparent and fair, which is only possible by involving other two branches in the process of appointments.
  • All vacancies of judiciary must be made public and appointment process must be initiated by commissions like national judicial service commission, an autonomous body comprising members from various backgrounds to short list the candidates for appointment
  •  A final say on the appointment should be with a committee comprising members from all the three branches of government, i.e. Judiciary, Executive and Legislature. It will take into account all recorded materials on the candidates and recommends the candidate for appointment. This system would strengthen judicial independence.


The opacity in the current collegium system of appointment of judges is not good sign for democracy and independence of judiciary. A covert manipulation may possible from such a system which keeps out the best legal minds from the judicial system. Hence a transparent, fair, and open system of appointment is central to ensuring that people have faith in the legal system, which is essential for functional democracy, doing business, and ensuring development.

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