Judicial independence and appointments

The first principle

In a democracy the majority makes the law, but someone has to make sure that the majority, and the government it elects, obeys the law it has made. That someone is a court, and it can do the job only if judges do not owe their posts, pay or future to the people whose actions they judge. This is why the Constitution protects judges from the executive and the legislature at every point of their careers, and why the question of who appoints them has been the longest running contest between the courts and the government.

The core

Why independence is a condition of democracy

• Rule of law. The government is the largest litigant in the country, so only a court that does not depend on it can make the law bind the state as well as the citizen.
• Rights against majorities. Fundamental Rights matter most to those who lose elections, such as minorities, dissenters and the poor. Only a judge who cannot be punished for an unpopular verdict can enforce them against a majority that wants otherwise.
• The federal umpire. Disputes between the Union and the states, or among states, go to the Supreme Court under Article 131. Neither side would accept the verdict of an umpire that the other side controls.
• Free and fair elections. Election petitions and disqualifications are settled by courts, so independence protects the process that creates democratic power.

Constitutional safeguards

• Security of tenure. A Supreme Court judge holds office till 65 and can be removed only under Article 124(4): an address by each House of Parliament, passed by a majority of its total membership and two thirds of members present and voting, on the ground of proved misbehaviour or incapacity. The Judges (Inquiry) Act, 1968 requires a three member committee to investigate the charges first, and High Court judges, who retire at 62, are removed the same way.
• Financial security. Salaries and allowances are charged on the Consolidated Fund of India (Article 112) and the expenses of the Supreme Court are likewise charged, so they are not voted on every year. A judge's salary and rights cannot be varied to his disadvantage after appointment, except during a Financial Emergency under Article 360.
• Protection from criticism in the legislature. Article 121 bars discussion in Parliament of the conduct of a judge in the discharge of duties, except on a motion for removal; Article 211 applies the same rule to state legislatures.
• Power to protect itself. The Supreme Court (Article 129) and the High Courts (Article 215) are courts of record with power to punish for contempt of themselves.
• No rewards after retirement in practice. A retired Supreme Court judge cannot plead in any court in India (Article 124(7)), and a retired High Court judge may plead only in the Supreme Court and in other High Courts (Article 220).
• Separation from the executive. Article 50, a Directive Principle, asks the state to separate the judiciary from the executive in public services, which the Code of Criminal Procedure, 1973 did for magistrates.
• Appointments in consultation. Judges are appointed by the President after consultation with the Chief Justice of India (CJI) and other judges (Articles 124(2) and 217). Parliament may enlarge the jurisdiction and powers of the Supreme Court but not curtail them, and the privileges and allowances of a judge cannot be altered to his disadvantage after appointment (Article 125(2)).

Dimensions

How the collegium came about

• First Judges case, S. P. Gupta v Union of India (1981). The Court held that "consultation" with the CJI did not mean concurrence, so the executive had the final word on appointments and transfers.
• Second Judges case, Supreme Court Advocates on Record Association (1993). A nine judge bench overruled S. P. Gupta and held that the opinion of the CJI, formed after consulting two senior most judges, has primacy. The government may return a name once, but a reiterated name must be appointed.
• Third Judges case, In re Special Reference No. 1 of 1998. On a Presidential reference under Article 143, the Court said the CJI must consult a collegium of the four senior most judges for Supreme Court appointments and two senior most judges for High Court appointments, and that the opinion must be collective, not the CJI's alone.
• NJAC case, Fourth Judges case (October 2015). The Ninety ninth Amendment (2014) had inserted Article 124A to create a National Judicial Appointments Commission (NJAC): the CJI, two senior most judges, the Union Law Minister and two eminent persons chosen by a panel of the Prime Minister, the CJI and the Leader of the Opposition. By four to one the Court struck down the amendment and the NJAC Act, 2014, holding that primacy of the judiciary in appointments is part of its independence, a basic feature, and that the Law Minister and eminent persons, any two of whom could veto a candidate, could defeat it. Justice J. Chelameswar dissented, calling the collegium opaque and holding that executive participation does not by itself destroy independence.
• After 2015. The Court restored the collegium but asked the government to draw up a fresh Memorandum of Procedure (MoP) covering eligibility, transparency, a secretariat and a complaints mechanism. More than a decade later the MoP has still not been finalised, and delays in notifying names cleared by the collegium remain a source of friction.

Strengths and weaknesses of the collegium

• Strengths. It keeps the appointment of judges away from the government, which is the main litigant before them, and it relies on judges who have seen the candidates' work over years.
• Weaknesses. Selection happens behind closed doors without published criteria, so merit and seniority are weighed in ways no one outside can check, and critics speak of "judges appointing judges". Diversity has suffered, vacancies have remained unfilled for long periods, and few constitutional democracies leave appointments almost entirely to sitting judges.
• Partial correctives. Since 2017 the Supreme Court publishes collegium resolutions on its website, and in 2025 it began publishing the assets declared by its judges, though the reasons for choosing one candidate over another are still not disclosed.

In practice

The United States as a comparison

The United States (US) gives the choice to elected politicians and relies on publicity and the separation of powers, not on judicial self selection, to keep the bench independent. Its weakness is the reverse of India's: the process is open but deeply partisan, as seen when the Senate refused to consider President Obama's nominee Merrick Garland in 2016 and then confirmed Justice Amy Coney Barrett barely a week before the 2020 election.

Diversity on the bench

• The record. Justice M. Fathima Beevi became the first woman judge of the Supreme Court in 1989, and only eleven women had served on it by 2025. After Justice Bela M. Trivedi retired in mid 2025, Justice B. V. Nagarathna was the only woman judge in office, and she is in line to become the first woman CJI in 2027, for about a month.
• Why diversity matters. A court that looks like the society it serves earns more legitimacy; judges from different backgrounds bring perspectives that improve reasoning on issues such as sexual violence, family law and workplace discrimination; an inclusive bench makes the justice system more approachable; and women judges act as role models who widen the pipeline of lawyers.
• What holds it back. The pipeline is narrow, since few women reach senior positions at the Bar or in High Courts; appointments from among senior advocates have rarely gone to women; and because elevation depends on seniority and age, women who joined the profession late or were appointed late to High Courts retire before they reach the top.

Accountability without loss of independence

Independence protects judges from pressure, not from scrutiny. No judge of the higher judiciary has yet been removed under Article 124(4): the motion against Justice V. Ramaswami failed in the Lok Sabha in 1993, and Justice Soumitra Sen resigned in 2011 after the Rajya Sabha voted for his removal. In 2025, after cash was found at the residence of Justice Yashwant Varma, an in house committee of judges reported against him and the Lok Sabha Speaker admitted a removal motion and set up an inquiry committee under the 1968 Act. Short of removal lie the in house procedure (1999), the Restatement of Values of Judicial Life (1997) and constitutional morality, which binds judges as much as ministers.

Issues and way forward

• Opacity. The main charge against the collegium is that no one knows why a candidate was chosen. Finalising the MoP with written criteria, a permanent secretariat to keep data on candidates, and published reasons in summary form would answer most of it without giving the executive a veto.
• Delays on both sides. Vacancies stay open because the collegium is slow to recommend and the government slow to notify, so fixed timelines for each stage would place responsibility where it belongs.
• Narrow diversity. Considering women and members of under represented groups early in their High Court careers, widening the pool of senior advocates considered, and encouraging women's entry into the subordinate judiciary would build the pipeline over a generation.
• A fresh model, carefully. The NCRWC (National Commission to Review the Working of the Constitution, 2002) proposed a National Judicial Commission. Any new body would need a judicial majority and no executive veto to survive the 2015 test.
• Context of pendency. With more than five crore cases pending across courts according to the National Judicial Data Grid, unfilled posts cost litigants directly, which makes the appointment process a question of access to justice as well as of institutional power.

Common confusions

• Collegium and the Constitution. The word "collegium" does not appear in the Constitution. Articles 124 and 217 speak only of consultation; the collegium is the Court's reading of that word in 1993 and 1998.
• Removal and impeachment. Judges are removed by an address of both Houses under Article 124(4); "impeachment" is the term used in Article 61 for the President. The popular use of "impeachment" for judges is loose.
• First and Second Judges cases. The first (1981) gave primacy to the executive; the second (1993) gave it to the judiciary and created the collegium.

For the exam

• Keyword bank: independence of the judiciary, security of tenure, Article 124(4), charged expenditure, Article 121, contempt power, collegium, Second Judges case, Third Judges case, NJAC, Ninety ninth Amendment, Memorandum of Procedure, advice and consent, diversity on the bench, judicial accountability.
• Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: "Since Justice Fathima Beevi took oath in 1989, only eleven women had sat on the Supreme Court by 2025, and for much of that year there was just one, which shows how narrow the route to the highest court remains."
  • Introduction with a judgement: "In the NJAC case (2015) the Supreme Court held that primacy of the judiciary in appointing judges is part of its independence, a basic feature that even a constitutional amendment cannot remove."
  • Conclusion: "Judicial independence is secured not only by tenure and salary but by an appointment process that the public can trust, which means the collegium must become as transparent as it is independent."
  • Conclusion: "Independence and accountability are two sides of the same coin; a judiciary that explains how it chooses and disciplines its members strengthens, rather than weakens, its claim to be free."