Judicial Appointments in India: Independence, Diversity and Institutional Reform

Context

A private member’s Bill has recently been introduced in Parliament proposing constitutional amendments to ensure greater diversity in judicial appointments and to establish regional benches of the Supreme Court. The Bill has reignited debate on the structure of judicial appointments, the functioning of the collegium system, representation of marginalised communities, and access to justice. These issues raise fundamental constitutional questions concerning judicial independence, separation of powers, equality, and federal accessibility.

Q1. What are the constitutional provisions governing judicial appointments in India?

1. Article 124 provides that judges of the Supreme Court are appointed by the President after consultation with the Chief Justice of India and other judges deemed necessary.
2. Article 217 governs the appointment of High Court judges and requires consultation with the Chief Justice of India, the Governor of the State, and the Chief Justice of the concerned High Court.
3. Article 130 provides that the Supreme Court shall sit in Delhi or any other place as decided by the Chief Justice of India with the approval of the President.
4. The Constitution originally envisaged a consultative model, where the executive formally appointed judges but was required to consult the judiciary.
5. The term “consultation” was not explicitly defined in the Constitution, leading to later judicial interpretation.
6. The constitutional design sought to balance executive authority with judicial input to preserve independence.
7. No constitutional provision explicitly mentions the collegium system; it emerged through judicial pronouncements.
8. The framework reflects the broader principle of separation of powers embedded in the Constitution.

Q2. How did the collegium system evolve and what are its key features?

1. The collegium system emerged through judicial interpretation in a series of landmark cases rather than through constitutional amendment.
2. In the First Judges Case (1981), the Supreme Court held that the executive had primacy in judicial appointments.
3. In the Second Judges Case (1993), the Court reversed its earlier view and established judicial primacy in appointments.
4. The Third Judges Case (1998) clarified that the collegium for Supreme Court appointments would consist of:
   1. The Chief Justice of India
   2. Four senior-most judges of the Supreme Court
5. For High Court appointments, the collegium consists of the CJI and two senior-most judges.
6. The government may return a recommendation once for reconsideration, but if reiterated, it is constitutionally binding.
7. The collegium system strengthened judicial independence by reducing executive interference.
8. However, it operates without a formal statutory framework, relying on conventions and internal procedures.

Q3. Why was the National Judicial Appointments Commission (NJAC) struck down?

1. In 2014, Parliament enacted the 99th Constitutional Amendment to establish the NJAC.
2. The NJAC included:
   1. The Chief Justice of India
   2. Two senior-most Supreme Court judges
   3. The Union Law Minister
   4. Two eminent persons
3. The objective was to introduce greater transparency and broader participation in appointments.
4. In 2015, the Supreme Court struck down the NJAC as unconstitutional.
5. The Court held that the NJAC violated the basic structure doctrine, particularly judicial independence.
6. The presence of executive members was seen as compromising judicial primacy.
7. The judgment reaffirmed the centrality of an independent judiciary in constitutional governance.
8. As a result, the collegium system was restored and continues to function.

Q4. What are the concerns regarding transparency and accountability in the collegium system?

1. The collegium system has been criticised for functioning without clearly defined, publicly available criteria.
2. Decisions are often made through closed-door consultations, leading to perceptions of opacity.
3. Allegations of nepotism and favouritism have occasionally been raised in public discourse.
4. The absence of formal evaluation benchmarks raises concerns about objectivity.
5. Lack of diversity data publication reduces institutional accountability.
6. The absence of a structured grievance redressal mechanism limits oversight.
7. Although resolutions are now partially published, detailed reasoning is often limited.
8. Critics argue that judicial independence must coexist with institutional transparency.

Q5. Why is diversity in the higher judiciary becoming a constitutional debate?

1. Representation of Scheduled Castes, Scheduled Tribes, Other Backward Classes, women, and minorities remains limited in higher judicial appointments.
2. Data indicates that participation of marginalised communities in the higher judiciary is disproportionately low.
3. Limited representation raises concerns about substantive equality and social justice.
4. A socially diverse judiciary may enhance sensitivity in adjudication of discrimination-related cases.
5. Public confidence in institutions increases when institutions reflect societal diversity.
6. The private member’s Bill proposes constitutionally mandating representation proportional to population.
7. This raises debate between:
   1. Merit-based selection principles
   2. Representation-based justice principles
8. The issue involves balancing judicial independence with inclusive constitutionalism.

Q6. What is the proposal regarding regional benches of the Supreme Court?

1. Currently, the Supreme Court functions only from New Delhi.
2. Litigants from distant States face logistical and financial barriers in accessing the apex court.
3. Case pendency exceeds tens of thousands, creating delays in justice delivery.
4. The proposal suggests establishing regional benches in major cities.
5. These benches would:
   1. Exercise regular appellate jurisdiction
   2. Leave constitutional matters to the Constitution Bench in Delhi
6. The Law Commission has previously recommended regional benches.
7. Article 130 already allows the Chief Justice to designate alternative seats with executive approval.
8. Regional benches could enhance federal accessibility and reduce pendency.

Q7. How do judicial independence and substantive equality intersect in this debate?

1. Judicial independence ensures freedom from political interference in appointments.
2. Substantive equality requires that institutions reflect social diversity.
3. Excessive executive involvement may threaten independence.
4. Complete insulation from accountability may undermine legitimacy.
5. Representation enhances democratic trust in institutions.
6. Social diversity can enrich judicial reasoning and constitutional interpretation.
7. The challenge lies in designing mechanisms that do not compromise institutional autonomy.
8. Constitutional morality demands balancing structural independence with inclusive representation.

Q8. What reforms can balance independence, diversity, accountability, and accessibility?

1. The collegium can adopt transparent, data-driven criteria for selection.
2. Regular publication of diversity statistics can improve institutional legitimacy.
3. Structured consultation with bar associations and civil society can broaden perspectives.
4. Revisiting a reformed judicial appointments commission with safeguards for independence may be considered.
5. International models such as the U.K. and South Africa demonstrate that mixed commissions can function without compromising autonomy.
6. A phased introduction of regional benches could test operational feasibility.
7. Strengthening infrastructure and judicial capacity can address pendency concerns.
8. Long-term reforms must preserve the basic structure while promoting social justice and access to justice.

Conclusion

The debate on judicial appointments reflects deeper constitutional tensions between independence, accountability, equality, and accessibility. While the collegium system protects judicial autonomy, concerns regarding transparency and representation persist. Simultaneously, the proposal for regional benches seeks to enhance access to justice in a federal democracy. Any reform must carefully balance judicial independence—the cornerstone of the basic structure—with the constitutional commitment to substantive equality and inclusive governance. A calibrated, transparent, and institutionally sensitive approach remains essential to preserving public trust in the higher judiciary.