A retired Supreme Court judge’s recent remarks, that proposed names for judgeship may have been discussed with the Union government before the collegium met, have reopened the debate on the evolution of the collegium and on transparency in judicial appointments.

• Seeking the government’s “pre-approval” before the collegium meets would erode the autonomy of the judiciary in appointments.
• The collegium was designed to keep appointments free of political influence.
• The debate now centres on how to make the system more transparent without handing control back to the executive.

• Supreme Court: Article 124 says the President appoints its judges after consulting the Chief Justice of India (CJI).
• High Courts: Article 217 says the President appoints High Court judges after consulting the CJI, the Chief Justice of the High Court and the Governor.
• Reason for consultation: Judges are best placed to judge the professional merit of candidates, and consultation protects independence.
• Gap: The Constitution does not lay down the detailed process, which the courts built through judgments.

• First Judges Case (1981): The Court held that “consultation” did not mean “concurrence”, so the executive had primacy.
• Second Judges Case (1993): It reversed this, held that consultation meant concurrence, and created the collegium, giving primacy to the judiciary.
• Third Judges Case (1998): On a Presidential reference, the Court set the collegium at the CJI and four senior-most judges for the Supreme Court.
• Memorandum of Procedure (MoP): The detailed process prepared by the Law Ministry on these guidelines. The collegium initiates the proposal, and the Centre may return a name once. If the collegium repeats it, the appointment must be made.
• NJAC (2014): The 99th Amendment created the National Judicial Appointments Commission: the CJI, two senior judges, the Law Minister and two eminent persons.
• NJAC struck down (2015): The Supreme Court struck it down as a violation of the independence of the judiciary, and the collegium continues. The revised MoP agreed after this has not been finalised in 11 years.

• United States: The President nominates and the Senate confirms Supreme Court judges.
• United Kingdom: An independent Judicial Appointments Commission of 15 members selects candidates. The Supreme Court uses a separate selection commission.
• South Africa: A Judicial Service Commission of 23 members, including the judiciary, legislature, executive, lawyers and academics, recommends names.

• Lack of transparency and accountability: The reasons for choices are often not made public.
• Alleged nepotism: Relatives of sitting judges are said to be favoured.
• Unfinished reform: The revised MoP is still not final.