The Indian Collegium
Chapter Ninety-Seven
Syllabus topic 7, "Comparative Study of Judiciary in India, UK, USA and Switzerland."
Pages 432 to 436 of 676
In one line
The word consultation in article 124(2) was read to mean concurrence, and the result is that judges of the higher judiciary in India are selected by judges.
In the wording a student can write in an exam: the collegium is the body of the Chief Justice of India and the senior-most judges of the Supreme Court whose recommendation, under the construction of articles 124(2) and 217 adopted in the Second and Third Judges cases, is determinative in the appointment and transfer of judges of the Supreme Court and the High Courts.
The text
Article 124(2). Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal 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 for the purpose, and shall hold office until he attains the age of sixty five years, provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
Article 217(1). Every judge of a High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court.
Article 222. The President may, after consultation with the Chief Justice of India, transfer a judge from one High Court to any other.
Nothing in the text mentions a collegium, and nothing gives the Chief Justice more than a right to be consulted.
The four cases
1981, the First Judges case, S.P. Gupta v. President of India. Held that consultation does not mean concurrence, that the executive has primacy, and that the Chief Justice's opinion may be overruled for cogent reasons. It also relaxed locus standi so that lawyers could challenge appointments and transfers, which is a separate contribution treated in [Standing and Public Interest Litigation].
1993, the Second Judges case, Supreme Court Advocates-on-Record Association v. Union of India. A Bench of nine overruled S.P. Gupta on the appointment question. Held that consultation means concurrence; that the opinion of the Chief Justice of India, formed in consultation with his senior colleagues, has primacy; and that the process is integrated, participatory and consultative, the executive participating but not deciding.
1998, the Third Judges case, In re Special Reference No. 1 of 1998. A Presidential reference under article 143 asked what consultation with the Chief Justice required. Held that the Chief Justice must consult a collegium of the four senior-most judges of the Supreme Court for appointments to the Supreme Court, and of the two senior-most for High Court appointments and transfers; that the opinions must be in writing; and that a recommendation made without that consultation is not binding on the government.
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2015, the NJAC case, Supreme Court Advocates-on-Record Association v. Union of India. The Ninety Ninth Amendment had inserted articles 124A, 124B and 124C, creating a National Judicial Appointments Commission of the Chief Justice, the two next senior judges, the Union Minister of Law and Justice and two eminent persons, with a veto if any two members disagreed. Held, by four to one, that the Amendment and the Act were unconstitutional and void, as violating the independence of the judiciary and the primacy of the judiciary in appointments, which are part of the basic structure. The collegium was revived.
Articles 124A, 124B and 124C remain printed in the Constitution with a footnote recording that they were struck down, which is why a reader of the bare text must know the case.
How it works now
Supreme Court appointments. The Chief Justice and the four senior-most judges. The recommendation goes to the government, which may seek reconsideration once; if the collegium reiterates, the government is expected to appoint.
High Court appointments. The High Court collegium of the Chief Justice of that Court and the two senior-most judges initiates; the Supreme Court collegium of the Chief Justice of India and the two senior-most judges considers; the government processes.
Transfers under article 222. The Chief Justice of India, in consultation with the four senior-most judges and the Chief Justices of the two High Courts concerned.
The Memorandum of Procedure. A document agreed between the government and the judiciary setting out the steps. Its revision was directed in the NJAC case and it has remained unsettled since.
The criticisms
Opacity. The collegium's deliberations are not published, and its reasons are not given.
No external check. The body that selects is the body that is selected from.
Delay. Vacancies remain unfilled, and the government's power to sit on a reiterated recommendation is an informal veto the cases did not contemplate.
No textual basis. The word consultation does not naturally mean concurrence, and the First Judges case had read it the other way.
The answer. That judicial independence is a basic feature, that the executive is the largest litigant before the courts, and that the alternative attempted in 2014 gave the executive and two lay members a combined veto over the judiciary's own view.
A worked example
The collegium recommends a High Court Chief Justice for elevation to the Supreme Court, and the government does not act.
The law. On the Second and Third Judges cases the government may seek reconsideration once. If the collegium reiterates, the appointment should be made.
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In practice. There is no mechanism to compel the appointment, and the delay is itself a form of decision. The Supreme Court has repeatedly directed timelines and the position remains unresolved.
The comparison. In the United States a President may simply decline to nominate, and the Senate may decline to act, as it did on one Supreme Court nomination in 2016. Every system has a point at which political will is required and none can compel it.
The cases
Facts. Supreme Court Advocates-on-Record Association v. Union of India, the Second Judges Case, arose on petitions concerning the filling of vacancies and the meaning of consultation in articles 124(2), 217(1) and 222(1), and required reconsideration of S.P. Gupta v. President of India.
Held, by a Bench of nine. Consultation means concurrence; the opinion of the Chief Justice of India, formed in consultation with his senior colleagues, has primacy in the appointment of judges of the Supreme Court and the High Courts and in transfers; the appointment is an integrated participatory consultative process; and no appointment can be made unless it conforms to the final opinion of the Chief Justice formed in that manner.
Why it matters here. It is the case that created the collegium, and its ratio is the primacy of the judicial opinion rather than the existence of any particular body.
Facts. Supreme Court Advocates-on-Record Association v. Union of India, the NJAC case, concerned the Constitution (Ninety Ninth Amendment) Act 2014, inserting articles 124A to 124C, and the National Judicial Appointments Commission Act 2014.
Held, by four to one. The Amendment and the Act were unconstitutional and void. The independence of the judiciary and the primacy of the judiciary in the appointment of judges are part of the basic structure; the presence of the Law Minister and two eminent persons with a veto exercisable by any two members impaired that primacy. The collegium system as it existed before the Amendment was revived, and the Court directed consideration of improvements to the Memorandum of Procedure.
Why it matters here. It is the only decision anywhere striking down a constitutional amendment establishing a judicial appointments commission, and it is what makes the Indian method unique.
Distinctions
| Case | Year | Holding |
|---|---|---|
| S.P. Gupta v. President of India | 1981 | Consultation is not concurrence; executive primacy |
| Second Judges case | 1993 | Consultation means concurrence; judicial primacy |
| Third Judges case | 1998 | The collegium: four senior judges for the Supreme Court, two for High Courts; written opinions |
| NJAC case | 2015 | The Ninety Ninth Amendment and the 2014 Act void; collegium revived |
What beginners get wrong
"The collegium is in the Constitution." It is a construction of the word consultation in articles 124(2) and 217.
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"The Third Judges case overruled the Second." It answered a reference and elaborated the Second, prescribing the composition of the collegium and the requirement of written opinions.
"Articles 124A to 124C were deleted." They were struck down and remain printed with a footnote.
Limits and criticism
The system depends on the government cooperating, and there is no remedy for delay.
Transfers under article 222 are the least transparent part of it, and have been used in ways that have attracted criticism.
No other system on this syllabus gives judges the last word, which is either the strongest protection of independence or the strongest objection, depending on the view taken.
Quick revision
- The text: articles 124(2), 217(1) and 222(1) require consultation only.
- S.P. Gupta 1981: consultation is not concurrence; executive primacy.
- Second Judges case 1993, nine judges: consultation means concurrence; judicial primacy.
- Third Judges case 1998: the collegium of four senior judges for Supreme Court appointments, two for High Courts, written opinions.
- NJAC case 2015, four to one: the Ninety Ninth Amendment and the 2014 Act void; collegium revived.
- Articles 124A to 124C remain printed with a footnote recording that they were struck down.
- Criticisms: opacity, no external check, delay, no textual basis. Answers: independence as a basic feature, and the executive as the largest litigant.
Test yourself
1. Give the four cases in order with their holdings. S.P. Gupta v. President of India (1981): consultation does not mean concurrence and the executive has primacy. The Second Judges case (1993), by a Bench of nine: consultation means concurrence and the Chief Justice's opinion, formed in consultation with senior colleagues, has primacy. The Third Judges case (1998), on a Presidential reference: the collegium is the Chief Justice and the four senior-most judges for Supreme Court appointments and the two senior-most for High Court appointments and transfers, with written opinions. The NJAC case (2015): the Ninety Ninth Amendment and the 2014 Act are void and the collegium is revived.
2. What exactly does the Constitution say about appointment? Article 124(2) requires the President to appoint a judge of the Supreme Court after consultation with such judges of the Supreme Court and the High Courts as he deems necessary, with the Chief Justice of India always to be consulted for an appointment other than that of the Chief Justice. Article 217(1) requires consultation with the Chief Justice of India, the Governor, and the Chief Justice of the High Court. Article 222 requires consultation with the Chief Justice of India for a transfer. The collegium appears nowhere.
3. Why was the Ninety Ninth Amendment struck down? Because the National Judicial Appointments Commission it created consisted of the Chief Justice, the two next senior judges, the Union Minister of Law and Justice and two eminent persons, and any two members could veto a recommendation, so the judicial members could be overruled. The Court held by four to one that the independence of the judiciary and the primacy of the judiciary in appointments are part of the basic structure and that the scheme impaired them.
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4. What is the strongest criticism of the collegium and the strongest answer? The strongest criticism is that it has no external check and no published reasons, so a body selects its own successors in private, and that the construction of consultation as concurrence has no natural textual support. The strongest answer is that judicial independence is a basic feature, that the executive is the largest single litigant before the Indian courts, and that the alternative enacted in 2014 gave the executive and two lay members a combined power to veto the judiciary's own assessment.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.