The appointment of judges is central to judicial independence and part of the Basic Structure (Kesavananda Bharati, 1973).
In India, this evolved through judicial interpretation, whereas in the USA, the process is constitutionally and politically structured.
Evolution of the Collegium System in India
Articles 124(2) and 217(1)– Provide for appointment of judges by the President after consultation with the Chief Justice of India (CJI).
First Judges Case (S.P. Gupta v. Union of India, 1981)
Held that “consultation” does not mean “concurrence.” CJI’s opinion was not binding
Gave primacy to the executive in judicial appointments and transfers.
Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993) – Overruled the 1981 judgment. Established the Collegium System– CJI + 2 senior-most judges of the Supreme Court to recommend appointments.
Third Judges Case (Re Presidential Reference, 1998) – Expanded the collegium to CJI + 4 senior-most judges. Made consultation with the collegium binding on the executive.
Parliament passed the 99th Constitutional Amendment to replace the collegium with NJAC. Composition- CJI, 2 senior judges, Law Minister, and 2 eminent persons.
Supreme Court Judgment (2015), NJAC was struck down as unconstitutional, violating the Basic Structure (judicial independence).
Present Status
Collegium Composition-
Supreme Court- CJI + 4 senior-most judges.
High Court- Chief Justice + 2 senior-most judges.
Executive Role- Can seek reconsideration once, but must accept the collegium’s recommendation thereafter.
In the USA, Judges of the Supreme Court are nominated by the President and confirmed by the Senate after public hearings.
Analysis of system of appointment
India
USA
India’s collegium ensures independence but lacks transparency, whereas the U.S. model ensures openness but risks politicisation. Thus, a mechanism balancing independence and accountability is essential to preserve judicial integrity and democratic legitimacy.