Syllabus: Structure, organization and functioning of the Executive and the Judiciary
Context: Outgoing Chief Justice of India B.R. Gavai released detailed information on High Court judge recommendations processed during his tenure. This continues the transparency practice initiated by former CJI Sanjiv Khanna in May 2025.
Decisions During CJI Gavai’s Tenure
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- From May 14, 2025, the Collegium considered 129 names for High Court judgeships.
- 93 names were approved after vetting candidates from the Bar and lower judiciary.
- Social representation details:
- Women: 15
- OBC/BC: 11
- Scheduled Castes: 10
- Minorities: 13
- Related to judges: 5
- Among women: four were from minority communities, and one belonged to the Scheduled Caste category.
- During this tenure, 17 names approved earlier by previous Collegiums were appointed as High Court judges, including one woman advocate from a minority community.
- Transparency Practice
- In May 2025, the Supreme Court had publicly released details of 221 candidates cleared by Collegiums led by CJIs D.Y. Chandrachud and Sanjiv Khanna.
What is the Collegium System?
- The Collegium System governs appointment and transfer of judges in the Supreme Court and High Courts.
- It is not mentioned in the Constitution; it evolved through Supreme Court judgments.
- The Supreme Court Collegium consists of the CJI and four senior-most judges.
- The High Court Collegium is led by the HC Chief Justice and its two senior-most judges.
- The government may seek clarifications, but if the Collegium reiterates names, the government is bound to appoint.
Constitutional Basis
- Article 124: SC judges appointed by the President after consultation with senior judges; CJI consulted for all appointments except their own.
- Article 217: HC judges appointed by President after consultation with CJI, Governor, and HC Chief Justice.
Evolution of the Collegium
- First Judges Case (1981): “Consultation” not equal to concurrence; executive had primacy.
- Second Judges Case (1993): Reversed earlier view; CJI’s concurrence binding; CJI must consult two senior judges.
- Third Judges Case (1998): Required plurality; CJI must consult four senior-most SC judges; if two disagree, name not sent.
NJAC Act, 2014
- Created the National Judicial Appointments Commission.
- Struck down as unconstitutional for violating judicial independence.
Criticisms of the Collegium System
- Lack of transparency; decisions not publicly explained.
- Judicial vacancies persist; 3 vacancies in SC and 380 in HCs (Aug 2022).
- Allegations of nepotism and favouritism.
- No checks and balances; executive excluded from appointments.
- Poor diversity; women form only 11.5% of HC judges and 4 in SC.
- Opaque judicial transfers, threatening independence.
Steps Taken to Improve the System
- 99th Constitutional Amendment created NJAC; later invalidated.
- Memorandum of Procedure (MoP) outlines appointment rules; existing MoP of 1999 still used.
- Revised MoP (2015–17) sought transparency; not adopted by government.
Way Forward
- Reform MoP with balanced executive–judiciary participation.
- Expand eligibility criteria and allow open applications.
- Increase women’s representation.
- Maintain candidate lists, document Collegium proceedings, publish written opinions.
- Law Commission: equal role for executive–judiciary; raise retirement age to 65 (HC) and 68 (SC); appoint distinguished jurists and eminent Bar members.