In India, the appointment of Supreme Court and High Court judges was previously
determined by the President, in consultation with the Chief Justice of India and
other judges. The procedural guidelines for judicial appointments were defined
in Article 124 and Article 217 of the Indian Constitution.
Since 1993, the responsibility for appointments and transfers of judges in the
higher judiciary has been assigned to the Collegium system developed by the
Supreme Court. The nominal appointing authority is the President of India.
In the Collegium system, the Chief Justice of India and the four most senior
colleagues recommend candidates for appointment as Supreme Court and High Court
judges to the President through the Union Minister of Law and then via the Prime
Currently, the Collegium consists of six judges instead of five. This change
occurred because none of the four most senior judges are eligible to become the
next Chief Justice of India (CJI), and the next CJI requires to be a part of the
Collegium. Therefore, Justice Sanjiv Khanna currently serves as the sixth member
of the Collegium and will succeed Chief Justice DY Chandrachud as the next CJI.
The establishment of the Collegium system can be attributed to the inherent
disagreements between the executive and judiciary branches. Interestingly, this
system is not explicitly outlined in the Indian Constitution but has evolved
through a series of landmark Supreme Court judgments collectively known as the
Three Judges Cases (1981, 1993, and 1998).
Collegium System and its Evolution
The process of appointing and transferring judges has been shaped primarily
through Supreme Court rulings, rather than being established by a specific law
or constitutional provision.
The First Judges Case in 1981 established that the Chief Justice of India's
recommendations on judicial appointments and transfers could be rejected with
"cogent reasons." This ruling granted the Executive branch more power than the
Judiciary when it came to appointing judges for a span of 12 years.
In the Second Judges Case (1993), the Collegium system was introduced. The case
clarified that "consultation" meant "concurrence," emphasizing that it was not
just the Chief Justice's individual opinion, but rather an institutional opinion
formed through consultation with the two senior-most judges in the Supreme
In the Third Judges Case (1998), the Supreme Court expanded the Collegium to
include five members including the Chief Justice of India.
Head of Collegium System
The Supreme Court collegium, headed by the Chief Justice of India (CJI),
consists of the other four most senior judges of the Supreme Court.
Similarly, each High Court collegium is led by its Chief Justice and includes
two other senior judges from that court.
It is important to note that judges in higher judiciary positions are appointed
exclusively through the collegium system. The government's role comes into play
only after the names have been decided upon and recommended by the collegium.
National Judicial Appointment Commission
The central government's attempt in 2014 to replace the collegium system with a
"National Judicial Appointments Commission" (through the Ninety-ninth Amendment
Act, 2014) was deemed unconstitutional by the supreme court in 2015. The court
ruled that this move threatened the independence of the judiciary. In 2015, the
Supreme Court declared the NJAC Act (2014) as "unconstitutional and void" after
receiving Writ Petitions that claimed it violated the independence of judiciary.
When the NJAC Act was passed by Parliament, Chief Justice H.L. Dattu declined to
participate in it. Following its rejection, then Union Minister Arun Jaitley,
who was also a senior lawyer, stated that Indian democracy cannot become a
tyranny of the unelected.
Memorandum of Procedure (MoP)
The Memorandum of Procedure (MoP) is a framework delineating the process for
appointing and transferring judges to India's Supreme Court and various High
Courts. It was crafted in consultation with the Chief Justice of India by the
government and was initially issued in November 1947, subsequently undergoing
The central government's authority to accept or refer back the collegium's
recommendations for judges' appointments and transfers is primarily grounded in
the Memorandum of Procedure (MoP). Although the MoP isn't a statutory law, it
functions as an administrative guideline developed through dialogues between the
government and the judiciary. It provides a structured approach for proposing,
assessing, and potentially revisiting recommendations.
Within the framework of the MoP, the central government possesses the capacity
to request additional information, articulate concerns, or return
recommendations to the collegium for re-evaluation. However, the final authority
to appoint judges lies with the collegium system, where a group of senior judges
make recommendations for appointment. The President of India after getting the
recommendations of the collegium from the Union Law Minister via the Prime
Minister, then formalizes these appointments.
The Memorandum of Procedure (MoP) is subject to periodic amendments and
revisions. Its interpretation may evolve over time in alignment with consensus
and legal understandings. The MoP strives to strike a balance between preserving
judicial independence and acknowledging the government's role in the appointment
process. It has been a topic of discussions and debates within India's legal and
The Memorandum of Procedure (MoP), initially formulated in accordance with the
Second Judges case, was found to be unsatisfactory in the Fourth Judges case. It
was then directed to be revised. However, it has been more than a decade since
then, and the revision and notification of the MoP are still pending. In the
order dated October 27, 2017, issued in R.P. Luthra case by a bench comprising
Adarsh Kumar Goel and Uday U. Lalit JJ., the Supreme Court called upon the
Attorney General to consider that "there should be no further delay in the
finalization of MoP in larger public interest." Surprisingly though, within just
15 days, another bench consisting of Dipak Misra CJ., A.K. Sikri and Amitava Roy
JJ., recalled this order and disposed of the case. As a result, the revision of
MoP remains pending.
Procedures for Judicial AppointmentsFor Chief Justice of India
The President of India appoints the Chief Justice of India and the other Supreme
Court judges. As far as the CJI is concerned, the outgoing CJI recommends his
successor via the Union Law Minister and Prime Minister to the President. In
practice, it has been strictly by seniority ever since the supersession
controversy of the 1970s.
For Supreme Court Judges
For other judges of the Supreme Court, the proposal is initiated by the Chief
Justice of India. The CJI consults the rest of the Collegium members, as well as
the senior most judge of the court hailing from the High Court to which the
recommended person belongs. The consultees must record their opinions in writing
and it should form part of the file. The Collegium sends the recommendation to
the Law Minister, who forwards it to the Prime Minister to advise the President
for giving appointment.
For Chief Justice of High Courts
The appointment of Chief Justices to the High Court follows a specific policy
aiming to have Chief Justices from outside the respective states. The Collegium
takes the call on the elevation. High Court judges are recommended by a
Collegium comprising the CJI and two senior-most judges of the High Court. The
outgoing Chief Justice of the High Court initiates the proposal, in
consultation with two senior colleagues.
The recommendation is sent to the
Chief Minister along with a copy to the CJI and the Union Law Minister. The
Chief Minister in turn with his/her opinion sends the proposal to the Union Law
Minister. The Union Law Minister sends the proposal along with its views and
connected papers to the Supreme Court Collegium. The Collegium thereafter sends
its recommendation to the President for appointment through the Union Law
Minster and Prime Minister.
For High Court Judges
The Memorandum of Procedure (MoP) provides detailed guidelines for appointing
High Court judges.
For appointments or elevations to the High Courts, the HC collegium (The HC
Chief Justice + 2 senior-most judges) must send a recommendation to the Chief
Minister along with a copy to the CJI and Union Law Minister.
The Union Law Ministry gives the names to the Intelligence Bureau (IB) to
conduct background checks. The IB then sends its report to the Union Law
Ministry. The Union Law Ministry along with its views, State Government's
report, and IB report sends the recommendation of the Chief Justice of the High
Court to the Supreme Court Collegium.
The Collegium thereafter sends its recommendation to the Union Law Minister. The
Union Law Minister may send the file back to the collegium for reconsideration,
if any. The Collegium has the right to reiterate the names sent back by the
Union Law Minister for reconsideration. If the SC Collegium reiterates a name,
the Centre is bound to appoint the candidate (But there is no time limit fixed
for doing so).
When a consensus is reached between the collegium and the Union Law Ministry,
the recommendations of the SC collegium is sent by the Union Minister of Law to
the Prime Minister, who in turn advises the President about the appointment.
The Supreme Court collegium in January 2023 issued a strong reminder to the
Union Law Ministry, emphasizing that once the judges' selection body (SC
Collegium) reconfirms a recommendation for a judicial appointment, it is
mandatory and binding for the Central Government. This clarification is
significant in determining the jurisdiction of the judges' selection body under
these circumstances. (Source: hindustantimes.com, Jan 12, 2023)
Timeline regarding the process of appointment of Judges
The Government of India prepared a Memorandum of Procedure (MoP) in the year
1999 in consultation with the Chief Justice of India. According to the MoP, the
following steps and timeline are prescribed for the appointment by
The Supreme Court has established a new timeline for appointing High Court
- The Chief Justice of the High Court sends recommendations from the High Court Collegium for permanent Judge appointments to both the Chief Minister of the State and the Chief Justice of India, endorsing a copy to Union Law Minister. - 6 months before the vacancy arises.
- The Chief Minister then shares their comments on these recommendations with the Union Law Minister within six weeks after receiving them. If no response is received within this timeframe, it will be assumed that there are no additional comments from the Chief Minister.
- The Union Law Minister forwards recommendations from all parties involved � including those from State Government, Intelligence Bureau, and personal opinion � to Supreme Court's Chief Justice without specified timeline.
- At this point, views from Supreme Court Judge(s) who possess knowledge about affairs related to that particular High Court are obtained by Chief Justice of India � also without a specific timeline mentioned.
- The Supreme Court Collegium will send its recommendation to the Union Law Minister after four weeks of consultation with the consultee Judges.
- The names can be returned by the Law Minister for reconsideration if specific reasons are provided or submitted directly to the Prime Minister, preferably within 3 weeks of the Supreme Court Collegium's recommendation.
- Prime Minister to advise the President for the appointment - No timeline specified.
- According to the guidelines, the Intelligence Bureau (IB) is required to
submit its report within 4 to 6 weeks of receiving the recommendation from the
High Court Collegium.
- Law Ministry to forward recommendations to the Chief Justice of India -
8 to 12 weeks of receipt of inputs from the State Government and IB.
- The Government of India to make appointment - 3 to 4 weeks of the
recommendation of the Supreme Court Collegium, if not sent back.
It is pertinent to note that timeline has not been prescribed for several stages
of appointment resulting in undue delay in appointment of Supreme Court and High
Process of appointment of Judges in other major countries:
Criticism of Collegium System
- In South Africa, the process of selecting judges involves a 23-member Judicial Services Commission (JSC). This commission advises the President on which individuals to nominate for judicial positions.
- In countries like Argentina and Brazil, the President has the power to nominate judges. However, these nominations must be approved by their respective Senates.
- In the UK, the responsible body for overseeing judges' appointments is the independent Judicial Appointments Commission (JAC). The JAC comprises 15 members, including three judges and 12 individuals selected through an open competition process.
- In the United States, judges of the Federal Court are appointed by the President with the advice and consent of the Senate. Before a vote in the Senate, candidates are evaluated by a committee from the American Bar Association and reviewed by the Senate Judiciary Committee. Unlike some countries, there is no specific retirement age for judges in the US. They continue to serve as long as they demonstrate "good behaviour."
- In France, judges are appointed by the President, who takes recommendations from the Higher Council of the Judiciary. Judges initially serve for three years and can be reappointed based on recommendations from the Ministry of Justice.
The Collegium system has faced criticism for being labelled as
'unconstitutional,' plagued by opacity, casteism, and nepotism. Article 124 and
Article 217 of India's Constitution don't mention the Collegium system for judge
appointments. Dr. B. R. Ambedkar, the Chairperson of the Drafting Committee,
even called it 'dangerous' during the Constitution's drafting.
The judiciary is
expected to be not only independent but also 'competitive.' A report revealed a
significant percentage of judges in higher courts having family ties to the
judiciary, primarily from upper social segments. Despite Article 124(3)
suggesting the inclusion of 'distinguished jurists,' appointments often seem
biased in favour of judges and well-connected senior lawyers, potentially
overlooking talent. Key issues include lack of transparency, scope for nepotism,
embroilment in public controversies, and missed opportunities for talented
junior judges and advocates.
Arguments in favour of Collegium System
The order to invalidate the National Judicial Appointments Commission (NJAC) in
India primarily aimed to protect the independence of the judiciary, a
fundamental element of a democratic system. The Supreme Court's reasoning was
rooted in the argument that involving Executive officials in the process could
fundamentally undermine the foundational principle of judicial independence.
The concern was that when government viewpoints influenced judicial appointments
and decisions, it could cast doubt on the judiciary's capacity to act
impartially and free from external pressures.
Although not every case may result
in biased or unfair judgments, the maxim from the 1924 case 'The King v. Sussex
Justices ex parte McCarthy
' by Lord Hewart remains relevant - "justice must not
only be done but must also be seen to be done." In simpler terms, justice not
only needs to be fair but also appear as such to maintain public trust and
The participation of Executive officials in the judicial process could create
uncertainty about the fairness of judgments. This could erode the fundamental
principle of judicial independence and compromise the public's perception of
justice being administered in a fair and impartial manner.
Furthermore, the compromise of the judiciary's integrity by the ruling
government's interests erodes democratic principles. The intertwining of the
judicial process with the Executive and Legislature introduces the potential for
unconstitutional actions and malpractice. In a democratic society, the judiciary
plays a pivotal role in upholding the system of checks and balances.
government wields too much influence over the legal system, it not only
undermines the rule of law but also poses a threat to democratic principles. Any
infringement on the independence of the legal system can erode these fundamental
To sum up, the judgment to annul the NJAC was rooted in the acknowledgment of
the indispensable role of an independent judiciary in sustaining a functioning
democracy. Introducing external influences that compromise this independence
could have serious and detrimental effects on the integrity and function of both
the legal system and democratic governance.
Cases of opaque transfer of Judges
In 2019, the Madras High Court's Chief Justice at the time, V.K. Tahilramani,
was transferred to the Meghalaya High Court. She ultimately resigned following
the transfer. Reports suggested that her transfer was a reaction to her judgment
in the Bilkis Bano case related to the Gujarat riots in 2002. During her tenure
at the Bombay High Court, Tahilramani had awarded life imprisonment to 11
individuals involved in gangraping a Muslim woman during those riots.
Justice Jayant Patel resigned from his position as Acting Chief Justice of
Gujarat High Court when he was transferred to Allahabad High Court after
ordering an investigation into Ishrat Jahan's murder by Gujarat police officers
The transfer of Justice Sanjib Banerjee from the Madras High Court to the
Meghalaya High Court as Chief Justice raised concerns about the authority of the
Supreme Court Collegium in overseeing the performance of Chief Justices in High
Courts. Justice Banerjee had issued judgments that criticized the government's
handling of the Covid-19 Pandemic and expressed disapproval of large election
The Madras Bar Association and 237 lawyers from the Madras High Court
raised concerns about transparency in judicial transfers and its potential
impact on judicial independence, drawing parallels to "punishment transfers"
observed during the Emergency period.
Justice S. Muralidhar of the Delhi High Court faced a transfer by the Union
Government just after making critical remarks about Delhi Police while handling
a case related to the Delhi riots. This move led to protests by the Delhi High
Court Bar Association.
Justice Akil Kureshi also experienced an unexpected and undesired transfer when
he was expected to become Chief Justice of the Gujarat High Court but was
instead transferred to become fifth in seniority at Bombay High Court.
There was criticism surrounding one Senior Judge of Gauhati High Court who was
transferred based on reports suggesting involvement in various judicial and
These instances highlight cases where judges were allegedly subjected to
transfers for reasons that were seen as politically motivated or due to their
judgments that went against the interests of people in power.
Several retired Supreme Court Judges, who were previously part of the Collegium,
have expressed criticism of its functioning in public. Justice Madan B. Lokur
published an article in 2019 titled "Collegium is accustomed to controversies,
but its recommendations are now under attack," specifically addressing concerns
about Judge transfers.
In 2020, Justice Chelameswar mentioned during an
interview that he never fully understood why certain High Court Judges were
being transferred. Justice Ruma Pal referred to the Collegium as "possibly the
best kept secret in the country" during the 5th V.M. Tarkunde Memorial Lecture
in 2011. From these statements, it is clear that sometimes there are immense
pressure on the collegium from the government regarding appointment and transfer
However, for a vibrant democracy and rule of law, it is imperative
that the SC Collegium works without fear or favour and doesn't buckle under any
sort of pressure. Further, a timeline should be prescribed for each stage of
appointment to prevent undue delay in appointment of Supreme Court and High
Written By: Md.Imran Wahab
, IPS, IGP, Provisioning, West Bengal
Email: [email protected]
, Ph no: 9836576565