Judicial Independence: Italy’s 2026 Referendum and India’s Collegium System
Judicial independence is not simply the separation of judges from politicians; it is the design of institutions that prevent any single branch of the state from acquiring disproportionate control over the machinery of justice. Two contemporaneous but structurally distinct constitutional debates test this proposition: Italy’s 2026 referendum on separating the careers of judges and prosecutors, and India’s continuing contest over the Collegium system of judicial appointments. Where Italy’s debate turns on the relationship between the bench and the prosecution, India’s turns on the relationship between the judiciary and the executive in appointing judges, both are different institutional problems, but pose a shared question, ‘does reforming a judicial institution strengthen its independence, or does it merely create new channels of control?’
Italy’s Judicial Architecture
Italy has historically treated judges (‘giudici’) and public prosecutors (‘pubblici ministeri’) as a single professional category, the magistracy (‘magistratura’), entering through a common competitive examination and governed by a unified High Council of the Judiciary, the Consiglio Superiore della Magistratura (CSM). Magistrates could move between adjudicating and prosecuting roles during a career, a structural feature largely absent in common-law systems, where the prosecution sits institutionally apart from the bench from the outset.
The Proposed Changes to Italy’s Judicial System
The constitutional bill associated with Justice Minister Carlo Nordio, approved by Parliament in October 2025 but falling short of the two-thirds supermajority required under Article 138 of the Italian Constitution to become law without a popular vote, rested on three principal changes.
- Separate career tracks: No later possibility of transfer between judges and prosecutors.
- Two self-governing councils: Institutional bifurcation of the unified CSM into two self-governing councils.
- A new disciplinary architecture: A High Disciplinary Court, external to both councils, would take over magistrates’ misconduct proceedings from the CSM’s internal disciplinary section.
A related, less-discussed change would have replaced peer election of council members with an element of sortition, or selection by lot.
Judicial Independence or Greater Political Control?
At the heart of this reform sits the question this article asks throughout: does separating adjudicators from prosecutors strengthen judicial independence, or does it expose one half of the profession to greater political control?
Supporters, led by Nordio and Prime Minister Giorgia Meloni’s coalition, argued for the former: separation would sharpen the constitutional distinction between the neutral arbiter and the accusing party, aligning Italy with France and Germany.
Critics, the National Association of Magistrates (ANM), the centre-left opposition, and a coalition of 117 constitutional scholars and three former Constitutional Court presidents, argued for the latter: severing prosecutors from the judiciary’s institutional shelter would expose them, not shield them, to political direction, particularly given prosecutors’ role in investigating governing officials.
Critics read the reform’s timing and framing as evidence that its real object was leverage over prosecutorial independence rather than neutrality as such.
The Referendum and Its Aftermath
The Referendum Result and Voter Turnout
Italians voted on 22–23 March 2026 in the fifth constitutional referendum in the Republic’s history. The bill was rejected by 53.24 percent of valid votes to 46.76 percent, on a turnout of 55.69 percent a defeat for the sitting government.
Because Italian confirmatory referenda under Article 138 carry no turnout quorum, the No vote settled the question on its merits.
Political Consequences of the Referendum
The result carried immediate political weight: Undersecretary Andrea Delmastro and Nordio’s Chief of Staff Giusi Bartolozzi resigned, and Meloni openly called for the resignation of one of her cabinet colleagues.
Lessons for Judicial Reform and Independence
These consequences point to a more nuanced conclusion than a simple rejection of reform. Italians did not reject judicial reform in principle; they declined to trade an existing, working safeguard against political influence for an uncertain replacement, even though the reform’s actual effect on judicial independence remained seriously contested among experts opposing the bill.
That contestation is not merely domestic: the Council of Europe’s European Commission for Democracy through Law, the Venice Commission holds that at least half of a judicial council’s members should be judges elected by their peers, a benchmark the reform’s proposed sortition element would have put in question.
The referendum result therefore reads less as a verdict on any single institutional design and more as a demand that the burden of proof lie with reformers, not with the status quo, a demand India’s own Collegium debate has yet to face.
Italy and India: Two Different Constitutional Debates
The two debates concern different institutional arrangements, but both raise questions about the relationship between judicial independence and the distribution of constitutional power.
| Aspect | Italy’s Judicial Reform | India’s Collegium Debate |
|---|---|---|
| Central issue | Separation of judicial and prosecutorial careers. | Judicial appointments and the relationship between the judiciary and the executive. |
| Institutional focus | The relationship between judges and prosecutors and the structure of judicial self-governance. | The process of appointing judges and the distribution of influence between constitutional institutions. |
| Constitutional concern | Whether institutional separation protects impartiality or creates new channels of political influence. | Whether changes to judicial appointments preserve judicial independence while addressing concerns about the appointment process. |
| Shared question | Does reforming a judicial institution strengthen its independence, or does it merely create new channels of control? | |
India: The Collegium’s Own Institutional Crossroads
The Italian and Indian debates arise from different institutional problems, there is one major issue that unifies them both – how judicial independence can be safeguarded while ensuring such arrangements remain accountable? While the Italian debate is focused on the connection between the judges and the prosecutors, India’s debate has been regarding the relation between the judiciary and the executive in appointing judges.
The Collegium System was not created by the express language of the Constitution but rather through a series of judgments of the Supreme Court. In the First Judges Case, the term ‘consultation’ in Article 124 and 217 was interpreted narrowly and as not requiring concurrence of the Chief Justice of India (CJI), and therefore primacy would rest with the executive for appointing judges.
The position was reversed in the Second Judges Case. Apprehensive of how executive dominance could compromise judicial independence, the court held that ‘consultation’ means ‘judicial concurrence’ and therefore accorded primacy to the opinion of the CJI and other senior judges collectively.
The Third Judges Case went further to institutionalize a five-member Collegium composed of the CJI and the four most senior judges.
This system was challenged as the Parliament, through the Ninety-Ninth Constitutional Amendment, created the National Judicial Appointments Commission, which would include the Union Law Minister, the CJI, two senior most judges, and 2 eminent members.
However, the Fourth Judges Case of 2015 ruled them as being unconstitutional, arguing that they were against the basic structure of the constitution because they endangered the independence of the judiciary. Thus, the collegium system was restored.
It is evident that the Supreme Court has viewed judicial primacy in the appointment process as an integral part of judicial independence. However, a question arises as to how judicial primacy can be protected without compromising on transparency, accountability, and institutional legitimacy?
What India Can Learn from Italy
Italy’s referendum offers India no institutional template to copy since the two countries face entirely different sets of problems. However, what needs to be shared between the two cases is not the structure of the institution, but the ideas of institutional design.
1. Independence Is Not Self-Certifying
First, independence is not self-certifying. While the Collegium’s insulation from the executive was based on the need for judicial independence, insulation cannot by itself establish institutional integrity. The Venice Commission’s benchmark that at least half of a judicial council should comprise judges chosen by their peers is a floor limit for judicial presence in the institution and not a sufficient one for decision-making. The example of India shows that peer selection cannot address issues of legitimacy if the process itself is poorly understood.
2. Institutional Risks Do Not Necessarily Follow Their Intended Trajectory
Second, institutional risks do not necessarily follow their intended trajectory. In Italy, separation was intended to reinforce functional distinction and accountability, but it was perceived as putting the prosecutors at risk of political influence by separating them from the judicial branch. For India, the lesson lies in the structure; any changes made to the structure of the Collegium should be assessed based not only on how transparent the new design will be, but where the decision-making power ultimately moves.
3. Structure Counts More Than Intention
Third, structure counts more than intention. As shown by the Italian case, a reform meant to address the problem of one vulnerability in a constitutional regime can create a completely new vulnerability in the same regime. The example of ANM’s concern that the separation of prosecutors would make them more vulnerable to political influence reflects this idea that independence does not depend on the intention behind the institution, but on the safeguards built into its structure.
4. The Issue of Accountability Needs to Be Made Visible
Lastly, the issue of accountability needs to be made visible. India does not have to make a choice between the opaque Collegium and greater executive control. There is a way to make the exercise of primacy more accountable through the establishment of a secretariat, documented rationale within reasonable secrecy, and clear timelines. Therefore, the objective here is not to cede judicial primacy but make its exercise transparent enough to ensure institutional legitimacy.
Conclusion
Both India and Italy reach the same fault line from different ends. The Italian referendum examined whether separating the judiciary from the prosecution would safeguard independence or merely shift influence. The Indian system has not confronted the same question, as the Collegium has never needed to explain itself to anyone except itself.
The proposition with which the article begins applies equally to both examples: reforming the structure of the judicial institution will not necessarily improve judicial independence, but could in fact open up new channels of influence. The experience of Italy is not a warning against reform, but against reform wrongly identified as transparency, and against transparency wrongly interpreted as relinquished primacy.
Therefore, we need to implement methods that do not undermine the power of the Collegium but still hold it accountable without transferring any power. India’s challenge is different from that of Italy, since it is not a matter of choosing between insulation and accountability, but proving that both could coexist in the same body.
Written By: Akshita Choudhary, Final Year Student, Gujarat National Law University (GNLU); CS Professional Qualified, and Pankti Rupani, Final Year Student, Gujarat National Law University (GNLU)
