ASKiIMAN™ ARCHIVE / INDIAN POLITY
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Appointment of Judges

The Collegium System, Executive Friction & Reform Debates

PART I — THE TUG OF WAR

FIRST JUDGES CASE (1981)

Executive Primacy

  • Article 124 states judges are appointed by the President *after consultation* with the CJI.
  • In the **First Judges Case (S.P. Gupta, 1981)**, the SC ruled that "consultation" does not mean "concurrence."
  • This gave the **Executive (Government) the final say** in appointments, treating the CJI's opinion as merely advisory.
SECOND & THIRD JUDGES CASES

Birth of the Collegium

  • **Second Judges Case (1993):** Reversed the 1981 ruling. "Consultation" *means* "concurrence." The CJI's advice became binding, birthing the Collegium system.
  • **Third Judges Case (1998):** Expanded the Collegium. The CJI must consult a plurality of judges (**4 senior-most judges** of the SC) before making a recommendation.
  • This created a unique system globally where **"judges appoint judges."**

PART II — CRISIS & REFORM

THE 99TH AMENDMENT (2014)

The NJAC Clash

  • Parliament passed the 99th Amendment creating the **National Judicial Appointments Commission (NJAC)** to replace the Collegium.
  • NJAC included the CJI, 2 SC judges, the Law Minister, and 2 eminent persons—giving the Executive a veto.
  • **Fourth Judges Case (2015):** The SC struck down the NJAC as unconstitutional, ruling that executive interference in judicial appointments violates the **Basic Structure** (Independence of Judiciary).
THE CURRENT DEADLOCK

Opacity & Reform

  • The Collegium system is heavily criticized for being **opaque, lacking a secretariat, and promoting nepotism** (Uncle Judges syndrome).
  • **Memorandum of Procedure (MoP):** The rulebook between the Govt and SC for appointments remains a point of friction, with the Govt delaying appointments it dislikes (pocket veto).
  • Debates continue over introducing a transparent, independent mechanism that balances judicial primacy with democratic accountability.