The appointment of judges to constitutional courts is one of the most critical aspects of maintaining the rule of law in a democratic republic. In India, this function sits at the intersection of the executive and the judiciary, often sparking debates about separation of powers, institutional independence, and accountability. Understanding how the executive participates in this process sheds light on the larger conversation about preserving the sanctity of the judiciary and the strength of India’s constitutional democracy.
Historical Context: Borrowed and Adapted Traditions
The roots of India’s judicial appointment system lie partly in its colonial legacy and partly in the adaptation of constitutional models from other democracies. The framers of the Constitution envisioned a judiciary that would be independent yet accountable. Articles 124 and 217 of the Constitution of India lay down the procedure for appointment of judges to the Supreme Court and the High Courts respectively.
The original framework gave the President the power to appoint judges, acting in consultation with the Chief Justice of India (CJI) and other judges as deemed necessary. This embedded the executive in the process — but consultation was expected to be meaningful, not ceremonial.
The Executive’s Formal Role: Text of the Constitution
Supreme Court Appointments:
Under Article 124(2), every judge of the Supreme Court is appointed by the President after consultation with such judges of the Supreme Court and High Courts as the President may deem necessary. The CJI must always be consulted.
High Court Appointments:
Under Article 217, judges of the High Courts are appointed by the President in consultation with the CJI, the Governor of the state, and the Chief Justice of that High Court.
Thus, the executive — through the President, who acts on the advice of the Council of Ministers — is formally empowered to appoint judges. However, this is balanced by the ‘consultation’ mandate, which, over decades, has evolved through landmark judgments.
The Evolution: From Executive Primacy to Judicial Collegium
After independence, the executive exercised significant influence. The first three decades saw appointments driven largely by the government’s recommendations. However, controversies, especially during the Emergency (1975–77) when the executive tried to supersede senior judges, pushed the judiciary to assert its independence.
This assertion culminated in the famous ‘Three Judges Cases’:
- S.P. Gupta v. Union of India (1981) — held that the CJI’s opinion was not binding on the President.
- Supreme Court Advocates-on-Record Association v. Union of India (1993) — reversed this, creating the Collegium System, giving primacy to the judiciary.
- In re Special Reference 1 of 1998 — clarified the Collegium’s composition and functioning.
Through these rulings, the Supreme Court effectively transferred the decisive say in judicial appointments from the executive to a Collegium of senior judges.
The Current System: How the Executive Fits In
Collegium System:
Today, a Collegium of the CJI and four senior-most judges of the Supreme Court recommends appointments and transfers. For High Courts, it is the CJI and two senior-most judges, in consultation with the High Court’s Chief Justice and senior judges.
The Executive’s Role:
Once the Collegium forwards its recommendations, the Law Ministry processes them. The President formally appoints the judges, acting on the advice of the Prime Minister and the Council of Ministers. However, the executive can return a recommendation once for reconsideration. If the Collegium reiterates it, the executive must accept.
This ‘return-and-reiterate’ mechanism ensures a limited but real executive check.
The NJAC Episode: A Clash of Principles
In 2014, Parliament attempted to replace the Collegium with the National Judicial Appointments Commission (NJAC) through the 99th Constitutional Amendment. The NJAC gave the executive and civil society a formal role in appointments. It was meant to make the process more transparent and accountable.
However, in Supreme Court Advocates-on-Record Association v. Union of India (2015), the Supreme Court struck down the NJAC as unconstitutional, reaffirming the Collegium’s primacy and emphasizing the need to protect judicial independence from potential executive interference.
Criticism and Calls for Reform
Critics argue that the Collegium is opaque and lacks accountability. Even the Supreme Court itself has admitted this and urged the government to help frame a better Memorandum of Procedure. Despite many discussions, no consensus has emerged on a replacement that balances independence with transparency.
The executive’s frustration over having little control has also led to delays — sometimes the government ‘sits’ on Collegium recommendations, leading to vacancies. This creates administrative logjams in the courts, hurting citizens most of all.
The Delicate Balance: Why This Matters
The executive’s role in appointments must tread a fine line. Complete executive control risks politicizing the judiciary. Complete judicial monopoly risks breeding opacity and unaccountable power.
In an ideal system, the executive and judiciary should engage in a fair, consultative process rooted in mutual respect for the Constitution’s spirit. The ultimate goal is to maintain a robust, independent, and effective judiciary — a critical pillar for safeguarding fundamental rights and restraining excesses of power.
Conclusion
India’s experience with judicial appointments shows the enduring tension between independence and accountability. The executive’s role is constitutionally essential, but its influence must be carefully balanced to protect judicial impartiality. As debates about reforms continue, one thing is clear: preserving this balance is vital for the health of India’s democracy.
CONTRIBUTED BY : ANSHU (INTERN)