The constitutional discourse surrounding judicial appointments in India once again came to the forefront when Chief Justice of India Surya Kant delivered a firm defence of the Supreme Court Collegium system, asserting that much of the criticism directed against it originates from individuals who neither understand the functioning of the judiciary nor appreciate the rigorous institutional process behind the appointment of judges to the constitutional courts. Addressing a felicitation ceremony organised by the Supreme Court Bar Association (SCBA) to welcome five newly elevated judges of the Supreme Court, the Chief Justice emphasised that appointments are not the product of arbitrary discretion or individual preference but are based upon a comprehensive institutional evaluation involving merit, judicial performance, experience, integrity, seniority, inclusiveness and diversity.
The remarks assume significance not merely because they came from the head of the Indian judiciary but because they were delivered at a time when the Collegium system continues to remain one of the most debated constitutional institutions in the country. Questions concerning judicial transparency, accountability, executive participation and institutional independence have repeatedly surfaced in public discourse over the last two decades. Against this backdrop, the Chief Justice’s address was more than a ceremonial speech—it represented an institutional defence of a constitutional mechanism that has shaped appointments to the higher judiciary for over three decades.
During his address, Chief Justice Surya Kant observed that the Collegium is frequently subjected to what he described as “casual criticism”, particularly from persons unfamiliar with the constitutional evolution of the appointment process and the detailed deliberations that precede every recommendation. He assured members of the Bar that while selecting judges for the Supreme Court and High Courts, the Collegium carefully evaluates numerous objective considerations, including a judge’s overall judicial performance, length of service, previous assignments, professional achievements, reputation, administrative capability, and the broader need to maintain inclusiveness and diversity within the constitutional courts. He further noted that the same objective standards guide appointments of Chief Justices of High Courts.
Expressing satisfaction with the recent elevation of Justice Sheel Nagu, Justice Shree Chandrashekhar, Justice Sanjeev Sachdeva, Justice Arun Palli and Justice V. Mohana to the Supreme Court, the Chief Justice described the recommendations as objective and merit-based, expressing confidence that the newly appointed judges would strengthen the institution through their judicial contributions. He also highlighted the unique institutional relationship between the Supreme Court Bench and the Bar, observing that years of interaction have enabled lawyers to assist the Court efficiently while simultaneously allowing judges to grasp complex issues within limited judicial time.
While these observations were made in the context of welcoming new judges, they inevitably revive one of the longest-running constitutional debates in India: who should appoint judges to the higher judiciary? The answer has evolved considerably since the Constitution came into force in 1950.
Originally, Article 124 of the Constitution envisaged that judges of the Supreme Court would be appointed by the President after consultation with the Chief Justice of India and other judges considered necessary. A similar framework existed under Article 217 for appointments to High Courts. During the early decades of constitutional governance, this consultation process was generally understood to give primacy to the executive, with judicial consultation serving an advisory role.
The constitutional position, however, underwent a dramatic transformation through what are now known as the Three Judges Cases. In S.P. Gupta v. Union of India (1981), often referred to as the First Judges Case, the Supreme Court held that executive primacy prevailed in judicial appointments. That position was fundamentally reversed in Supreme Court Advocates-on-Record Association v. Union of India (1993), popularly known as the Second Judges Case, where a nine-judge Bench held that the Chief Justice of India’s opinion formed collectively with senior judges would enjoy primacy in judicial appointments. The system was further refined in the 1998 Presidential Reference (Third Judges Case), which expanded the Collegium and clarified that appointments would be recommended collectively rather than by the Chief Justice acting individually.
The result of these constitutional developments was the emergence of the present Collegium system, under which appointments to the Supreme Court are recommended by the Chief Justice of India together with the four senior-most judges of the Supreme Court. Recommendations for High Court appointments similarly involve consultations between the Supreme Court Collegium, the respective High Courts and the executive. Although the Constitution itself does not expressly mention the word “Collegium”, the institution today derives its authority from binding constitutional precedent interpreting Articles 124 and 217.
The Chief Justice’s remarks also revive the larger constitutional principle of judicial independence, which has repeatedly been recognised as forming part of the basic structure of the Constitution. Judicial independence is not intended to create institutional privilege for judges but to ensure that constitutional adjudication remains insulated from political influence. Since constitutional courts frequently review executive action and legislative enactments, the appointment process itself inevitably assumes constitutional significance. The framers envisioned consultation between constitutional authorities, while subsequent judicial interpretation sought to prevent the possibility of executive dominance over appointments.
At the same time, the Collegium system has consistently attracted criticism from constitutional scholars, members of the Bar, civil society and even former judges. The principal criticism concerns institutional opacity. Unlike many constitutional appointment processes worldwide, Collegium deliberations traditionally occurred behind closed doors with limited public disclosure regarding the comparative evaluation of candidates. Questions have also been raised concerning the absence of formal selection criteria, the perceived possibility of favouritism, regional imbalances and the lack of a structured mechanism for public accountability.
These concerns culminated in Parliament enacting the Ninety-Ninth Constitutional Amendment and establishing the National Judicial Appointments Commission (NJAC) through legislation in 2014. The proposed Commission sought to replace the Collegium by creating a broader appointment body comprising members of the judiciary, the executive and eminent persons. However, in Supreme Court Advocates-on-Record Association v. Union of India (2015), a Constitution Bench struck down both the constitutional amendment and the NJAC Act, holding that judicial primacy in appointments constituted an essential feature of judicial independence protected under the basic structure doctrine. While restoring the Collegium, the Court simultaneously acknowledged concerns regarding transparency and invited suggestions for improving the Memorandum of Procedure governing appointments. That decision remains one of the most consequential constitutional judgments concerning the relationship between judicial independence and democratic accountability.
Chief Justice Surya Kant’s observations appear to be situated within this constitutional continuum. His emphasis that the Collegium evaluates performance, professional competence, experience, inclusiveness and diversity responds directly to recurring public criticism that appointments are based upon subjective preferences. His remarks suggest that internal institutional deliberations involve a far more extensive evaluative process than is generally visible outside the judiciary.
Particularly noteworthy is the Chief Justice’s emphasis upon diversity and inclusiveness as relevant considerations in judicial appointments. Contemporary constitutional scholarship increasingly recognises that a representative judiciary strengthens institutional legitimacy by bringing varied professional experiences, regional perspectives and social backgrounds into constitutional adjudication. Diversity does not replace merit; rather, constitutional courts increasingly regard it as one component of merit within a plural constitutional democracy.
Equally significant were the Chief Justice’s observations regarding the relationship between the Bar and the Bench. He described this relationship as one based upon mutual trust, noting that experienced advocates assist the Court in identifying the real legal issues while judges, despite enormous caseloads, endeavour to decide disputes through merit-based reasoning. Such observations reflect a broader constitutional reality that judicial legitimacy depends not merely upon judges but upon the collaborative functioning of the legal profession as a whole.
The speech also highlights an institutional truth often overlooked in public discussions. Judicial appointments do not merely determine who occupies constitutional office; they shape the future development of constitutional jurisprudence, commercial law, criminal justice, federalism, environmental regulation, digital privacy and civil liberties for decades. Judges appointed today may decide some of the most significant constitutional questions affecting future generations. Consequently, the process through which they are selected inevitably becomes a matter of constitutional importance rather than administrative convenience.
Nevertheless, the broader debate surrounding the Collegium remains unresolved. Supporters argue that judicial primacy protects constitutional courts from political pressure and preserves institutional independence. Critics contend that independence without adequate transparency risks diminishing public confidence. Increasing publication of Collegium resolutions, reasons for recommendations and decisions on transfers over recent years reflects an institutional effort to respond to some of these concerns without abandoning judicial primacy.
Ultimately, Chief Justice Surya Kant’s remarks should not be understood as rejecting criticism altogether. Rather, they underscore the need for criticism to be informed, institutionally grounded and constitutionally contextualised. Constitutional institutions inevitably invite scrutiny, particularly where they exercise powers affecting democratic governance. However, meaningful reform requires careful appreciation of the constitutional values the institution seeks to protect.
The debate over judicial appointments is therefore unlikely to disappear. It lies at the intersection of two equally important constitutional ideals judicial independence and democratic accountability. The challenge before India’s constitutional system is not to choose one at the expense of the other but to ensure that both continue to coexist through institutional evolution.
As India continues to refine its constitutional democracy, the Collegium will remain central to discussions about the future of the judiciary. Whether one favours reform, greater transparency or retention of the existing framework, one principle remains beyond dispute: the credibility of constitutional courts ultimately depends not only upon the quality of their judgments but also upon public confidence in the fairness, integrity and objectivity of the process through which judges themselves are chosen. Chief Justice Surya Kant’s address serves as a reminder that this confidence must be built upon informed constitutional dialogue rather than casual criticism, for the appointment of judges is not merely an administrative exercise it is one of the foundational processes through which the rule of law is preserved in a constitutional republic.
