Who chooses the judges of the Supreme Court and the High Courts? In India, the answer is the collegium system, in which senior judges themselves select new judges. Parliament tried to replace it with a National Judicial Appointments Commission (NJAC) in 2014, but the Supreme Court struck that down in 2015. Exams ask about the relevant Articles, the "Judges Cases", the make-up of the collegium and the NJAC. This post explains them in simple words. It ends with 15 previous year questions.
Key Points (Quick Revision)
- Article 124(2) - Supreme Court judges are appointed by the President after consultation with judges.
- Article 217 - High Court judges are appointed by the President after consulting the CJI, the Governor and the Chief Justice of the High Court.
- The collegium system came from the Second (1993) and Third (1998) Judges Cases.
- The 99th Amendment (2014) created the NJAC.
- The Supreme Court struck down the NJAC on 16 October 2015, in the Fourth Judges Case.
1. What the Constitution says
- Article 124(2) - every Supreme Court judge is appointed by the President after consultation with such judges of the Supreme Court and High Courts as the President thinks necessary. For judges other than the Chief Justice, the Chief Justice of India (CJI) must always be consulted.
- Article 217 - a High Court judge is appointed by the President after consulting the CJI, the Governor of the State and, for judges other than the Chief Justice, the Chief Justice of that High Court.
- Article 222 - the President may transfer a judge from one High Court to another after consulting the CJI.
The word "consultation" became the centre of a long debate - did it mean the President must agree with the judges, or only ask them?
2. The Judges Cases
| Case | Year | What it held |
|---|---|---|
| First Judges Case (S.P. Gupta case) | 1981 | "Consultation" does not mean "concurrence"; the executive had the final say |
| Second Judges Case | 1993 | Reversed the first case; the CJI's opinion has primacy, formed with two senior-most judges - the birth of the collegium |
| Third Judges Case (Presidential Reference under Article 143) | 1998 | Expanded the Supreme Court collegium to the CJI and four senior-most judges |
| Fourth Judges Case | 2015 | Struck down the NJAC and the 99th Amendment, restoring the collegium |
3. How the collegium works
- The Supreme Court collegium has the CJI and the four senior-most judges. It recommends appointments to the Supreme Court and the names of High Court Chief Justices, and decides transfers.
- A High Court collegium has the Chief Justice of the High Court and two senior-most judges. It sends names for that High Court to the Supreme Court collegium through the State government.
- The government can ask the collegium to reconsider a name once. If the collegium repeats the recommendation, the government is expected to appoint the person.
The process is guided by a Memorandum of Procedure (MoP) agreed between the government and the judiciary. Since 2017, the Supreme Court collegium has been publishing its resolutions on its website.
4. The NJAC
In 2014, Parliament passed the 99th Constitutional Amendment and the National Judicial Appointments Commission Act. The NJAC was to recommend judges for the Supreme Court and High Courts. It had six members:
- The Chief Justice of India (Chairperson).
- Two senior-most judges of the Supreme Court.
- The Union Minister of Law and Justice.
- Two eminent persons, chosen by a committee of the Prime Minister, the CJI and the Leader of the Opposition (or leader of the largest opposition party) in the Lok Sabha. One of them had to be from SC/ST, OBC, minorities or a woman.
Any two members could block a recommendation.
5. Why the NJAC was struck down
On 16 October 2015, a five-judge bench of the Supreme Court, by a 4:1 majority, declared the 99th Amendment and the NJAC Act unconstitutional.
- The Court held that independence of the judiciary is part of the basic structure of the Constitution.
- Giving the Law Minister and eminent persons a say, with a veto by any two members, could let the executive influence appointments.
- The Court accepted that the collegium needed improvement and asked for suggestions on transparency.
6. Criticism of the collegium
- Lack of transparency - there are no written criteria, and reasons for selection or rejection are not always given.
- "Judges appointing judges" - critics say it is not found in the text of the Constitution and has no checks.
- Delays and vacancies - disagreements between the government and the collegium can hold up appointments.
- Diversity - concerns about low representation of women and some social groups.
Supporters reply that the collegium protects courts from political pressure, which matters because the government is the biggest litigant.
7. Related appointments
- The CJI is appointed by convention on the basis of seniority; the outgoing CJI recommends the senior-most judge.
- Article 126 - the President may appoint an acting Chief Justice when the office is vacant.
- Article 127 - ad hoc judges may be appointed to the Supreme Court when there is a lack of quorum.
- Article 224A - retired judges may be asked to sit in High Courts.
8. Previous year questions
- Which Article deals with the appointment of Supreme Court judges? – Article 124(2)
- Which Article deals with the appointment of High Court judges? – Article 217
- Which Article deals with the transfer of High Court judges? – Article 222
- In which case did the Court hold that consultation does not mean concurrence? – First Judges Case (S.P. Gupta, 1981)
- Which case gave birth to the collegium system? – Second Judges Case (1993)
- The Third Judges Case arose from a reference under which Article? – Article 143
- How many judges are in the Supreme Court collegium? – Five (CJI and four senior-most judges)
- How many judges are in a High Court collegium? – Three (Chief Justice and two senior-most judges)
- Which Amendment created the NJAC? – 99th Amendment (2014)
- How many members did the NJAC have? – Six
- Who was to chair the NJAC? – Chief Justice of India
- When was the NJAC struck down? – 16 October 2015
- By what majority was the NJAC struck down? – 4:1
- On what ground was the NJAC struck down? – Independence of the judiciary is part of the basic structure
- Which Article allows ad hoc judges in the Supreme Court? – Article 127
9. How to revise this topic
Start with the Articles: 124(2) Supreme Court, 217 High Courts, 222 transfers, 126 acting CJI, 127 ad hoc judges, 224A retired judges.
Next, learn the four Judges Cases: 1981 executive primacy, 1993 collegium, 1998 five-member collegium, 2015 NJAC struck down.
Then fix the NJAC: 99th Amendment 2014, six members, CJI as chair, veto by any two, struck down 4:1 on 16 October 2015.
Finally, remember the collegium today: CJI plus four for the Supreme Court, Chief Justice plus two for High Courts, Memorandum of Procedure, resolutions online since 2017.
10. Frequently Asked Questions
What is the collegium system?
It is the system in which senior judges recommend appointments and transfers of judges. The Supreme Court collegium has the Chief Justice of India and the four senior-most judges.
Is the collegium mentioned in the Constitution?
No. The Constitution only speaks of consultation. The collegium came from the Supreme Court's judgments in the Second Judges Case (1993) and Third Judges Case (1998).
What was the NJAC?
The National Judicial Appointments Commission was created by the 99th Amendment in 2014. It had six members, including the CJI, two senior judges, the Law Minister and two eminent persons, to recommend judges.
Why was the NJAC struck down?
In October 2015, the Supreme Court held by 4:1 that the NJAC threatened the independence of the judiciary, which is part of the basic structure of the Constitution.
Can the government reject a collegium recommendation?
The government can send a name back for reconsideration once. If the collegium repeats it, the government is expected to make the appointment.
For more Polity topics in simple language, see our Supreme Court of India, High Courts and the Indian Judiciary and Contempt of Court posts, or browse the Polity section. Preparing for a civil services exam? Start with the UPSC Civil Services guide or join the 100 Hour GS Course.