Constitutional framework and the original scheme
The Constitution of India lays down the basic legal framework for appointing judges to the higher judiciary. Article 124 governs appointments to the Supreme Court (including the Chief Justice of India), while Articles 214–222 and Article 217 set out the rules for High Court appointments and transfers. Under these provisions the President formally appoints judges, after the consultative process the Constitution requires. Those eligible for the Supreme Court must have been High Court judges for five years or advocates for ten years, or be distinguished jurists; for High Courts the eligibility is ten years’ practice or judicial office. These constitutional provisions frame the appointment power, but they do not specify the detailed practical procedure — that emerged through judicial interpretation and administrative practice.
From “consultation” to the Collegium — the judicial solution
Although the Constitution speaks of “consultation”, the exact meaning was unclear until the judiciary itself clarified it in a trilogy of cases. The Second and Third Judges Cases (1993, 1998) established that the opinion of the Chief Justice of India (CJI), formed in consultation with a small group of seniormost judges (the Collegium), must have primacy in recommending appointments — creating the Collegium System. For the Supreme Court the Collegium comprises the CJI plus four seniormost judges; for High Courts the recommendation starts at the High Court with consultation and moves to the Supreme Court Collegium for final recommendation. The President then acts on the Collegium’s recommendation; the government can ask the Collegium to reconsider a name once, but if the Collegium reiterates, the appointment follows. The Collegium was adopted to protect judicial independence from executive influence.
The Memorandum of Procedure (MoP) and administrative role
Because the Constitution leaves many procedural details unspecified, the Memorandum of Procedure (MoP) developed as a practical document agreed between the judiciary and executive setting out steps for selection, background vetting, clearances (including security checks by the Intelligence Bureau), and notifications. The Department of Justice hosts MoPs for Supreme Court and High Court appointments and these documents explain administrative steps such as timing, consultations with state authorities, and processing of names. The MoP therefore acts as the operational rulebook that implements the Collegium’s recommendations.
The NJAC episode — attempt at reform and the Supreme Court reply
In 2014 Parliament enacted the 99th Constitutional Amendment and the NJAC Act to replace the Collegium with a National Judicial Appointments Commission (NJAC) — a body involving the CJI, two senior judges, the Union Law Minister and two eminent persons. Proponents argued NJAC would increase transparency, accountability and diversity in appointments. The Supreme Court, however, struck down NJAC in 2015, holding that executive and lay participation as envisaged risked undermining judicial independence — an essential feature of the Constitution’s basic structure. The judgment reinstated the Collegium while acknowledging the public concerns about opacity.
Persistent criticisms of the Collegium
Critics of the Collegium raise three consistent concerns: opacity (collegium deliberations were seldom published), lack of objective criteria for selection, and limited representativeness (low numbers of women and socially disadvantaged groups among appointees). These criticisms fuel ongoing debates over whether procedural changes or a statutory reform can improve accountability without compromising independence. The judiciary has itself moved incrementally to address transparency criticisms by publishing resolutions and some supporting material online. The Supreme Court’s own site now posts collegium resolutions and appointment-related statements — a step toward openness.
Recent initiatives, administrative reforms and proposals
Since the NJAC decision several administrative and procedural initiatives have been advanced:
• MoP revisions and consultations: The Union government drafted revised MoP text and engaged the Collegium in discussions (a draft MoP circulated from 2016 onward). Periodic MoP updates attempt to standardize timelines, documentation and vetting steps.
• Transparency drives by Supreme Court: The Court has published tabular lists of Collegium-approved proposals, copies of some MoP documents, and statements about asset declarations to improve public confidence. These transparency moves respond to public pressure without altering collegial primacy.
• Calls for diversity and structured selection: The Centre has recently urged high courts and collegia to consider social diversity (SC/ST/OBC/minorities, women) when recommending names — an administrative push to broaden representation.
• Debates on structural alternatives: Legal scholars and some judges have again proposed institutional innovations such as a National Judicial Service/All-India Judicial Service (AIJS) to build a larger and more meritocratic pipeline for judges, and procedural safeguards like clear eligibility matrices, interview-like assessments, and a role for independent eminent-person panels while preserving judicial primacy. Public figures and retired judges continue to press for such reforms to address vacancies and representation.
• Executive-judiciary exchanges: The executive periodically returns names or requests reconsideration; the Collegium occasionally revises its approach, and the CJI has publicly cautioned that reforms must not “be at the cost of judicial independence,” reflecting consensus that any change must retain the core value of an independent bench.
Where reform balances must be struck
The core constitutional tension is obvious: how to improve transparency, diversity, and accountability without subjecting judicial selection to political capture. Recent practical steps — publishing collegium resolutions, clarifying MoP timelines, urging diversity, and discussing a professional judicial recruitment stream (AIJS) — show movement toward incremental, administrative reforms rather than radical constitutional overhaul. The experience with NJAC shows that any statutory intervention bringing the executive or political appointees into decisive roles faces constitutional hurdles — unless the design both protects independence and offers demonstrable safeguards.
Conclusion: cautious evolution, not abrupt revolution
Appointment of Supreme Court and High Court judges in India remains a judicially-led process implemented through the Collegium and MoP. The NJAC episode and successive transparency and administrative initiatives show that reform is necessary and possible — but must protect judicial independence. The path likely to endure combines: (a) collegial primacy, (b) procedural clarity (MoP), (c) greater transparency and published reasoning, and (d) measures to widen the talent pool and social diversity (including training streams and selection norms). That combination seeks the democratic virtues of accountability while safeguarding the judiciary’s constitutional role as an independent interpreter of law.
Mnemonic sentence (one-liner)
“COLLEGIUM + MoP, NJAC struck down; Transparency, Diversity, and AIJS debated.”
(Use this short sentence to recall: Collegium & MoP are current practice → NJAC was struck down → Recent reforms: transparency, push for diversity, and proposals like AIJS.)
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Discover how judges are appointed to the Supreme Court and High Courts in India through an in-depth analysis of the Collegium System, Memorandum of Procedure (MoP), and NJAC reforms at Lawgnan.in. Understand the evolution from “consultation” to judicial primacy, the balance between independence and accountability, and the ongoing reforms promoting transparency, diversity, and merit-based selection. This article is ideal for law students, UPSC aspirants, and judiciary candidates seeking clarity on judicial appointments. Explore constitutional provisions, key cases, and modern challenges shaping India’s higher judiciary appointment process only on Lawgnan.in.
