Judicial appointments

What are Judicial Appointments?

Judicial appointments in India mean the process of selecting judges for the High Courts and the Supreme Court. This occurs through the discussion within the collegium system composed of the Chief Justice of India and senior judges. However, in recent consultation, there have been efforts to reform this system, like the National Judicial Appointments Commission (NJAC), which aims to involve the government and civil society in the appointment process. It was struck down by the Supreme Court stating that it threatened judicial independence. The All India Judicial Services (AIJS), a national-level exam to appoint lower court judges, was another plan proposed to replace the current system. However, many states opposed the idea reasoning that it might decentralize the state powers. Overall, judicial appointments remain a highly debated issue, with a constant push and pull between independence, transparency, and fairness.

Legal Provisions related to Appointment of Judges

Article 124, Constitution of India – Supreme Court Judges' Appointment

"Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts as the President may deem necessary..."

Article 124 states that the President is vested with the power to appoint Supreme Court judges after consulting judges, especially the Chief Justice of India.

Article 217, Constitution of India – Appointment of High Court Judges

"Every Judge of a High Court shall be appointed by the President... after consultation with the Chief Justice of India, the Governor of the State, and... the Chief Justice of the High Court."

This article states that judges of High Courts are appointed by the President in consultation with key constitutional authorities, particularly the Chief Justice of India.

Article 222, Constitution of India – Transfer of High Court Judges

"The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court."

Article 222 discussed the transfer of judges expressing that judges can be transferred from one High Court to another by the President, but only after consulting the Chief Justice of India.

Article 224, Constitution of India – Appointment of Additional and Acting Judges

"The President may appoint duly qualified persons to be additional Judges for a temporary period to clear arrears or meet increased workload."

This article states that when High Courts are overburdened, the President can appoint temporary additional or acting judges to assist in the administration of justice.

Union of India v. Sankalchand Sheth (1977)

In this case, the Supreme Court examined the scope of the President’s power to transfer High Court judges under Article 222 of the Constitution. The Court held that while the President has the authority to order transfers, such power must be exercised only after effective consultation with the Chief Justice of India. Importantly, the judgment clarified that “consultation” does not require concurrence, but it must be meaningful and based on full and relevant information.

S. P. Gupta v. Union of India (1981)

This case also know as the First Judges Case held that the President was not bound by the Chief Justice's advice. The Supreme Court interpreted the term “consultation” in judicial appointments to mean that the executive held primacy over the judiciary. It stated that the opinion of the Chief Justice of India was not binding on the President, thereby giving the executive a dominant role in appointments and transfers. While the judgment emphasised transparency and accountability, it was later criticised for weakening judicial independence and opening the door to executive interference.

Supreme Court Advocates-on-Record Association v. Union of India (1993)

This Second Judges Case fundamentally altered India’s appointment process by overturning S.P. Gupta and establishing judicial primacy. The Supreme Court held that the Chief Justice of India, acting collectively with senior judges, would have decisive authority in appointments, giving rise to the Collegium system. This judgment framed judicial independence as a core constitutional value and significantly reduced executive discretion in judicial appointments.

In re: Presidential Reference (1998) – The Third Judges Case

In this case, through a Presidential Reference, the Supreme Court clarified and expanded the Collegium system by specifying its institutional composition. It held that the Chief Justice of India must consult a plurality of judges and ultimately fixed the Collegium at five senior-most judges for Supreme Court appointments.

Supreme Court Advocates-on-Record Association v. Union of India (2015) – The NJAC Case

In striking down the National Judicial Appointments Commission (NJAC), the Supreme Court in this case reaffirmed the primacy of the judiciary in appointments, holding that judicial independence is part of the basic structure of the Constitution. While acknowledging flaws in the Collegium system, the Court rejected the inclusion of the executive and civil society members in the NJAC, emphasising that any dilution of judicial control posed a constitutional risk.

Variations in Judicial Appointments

The Collegium System is the method currently used in India for the appointment and transfer of judges in the higher judiciary, namely the Supreme Court and High Courts. Unlike many constitutional bodies, the Collegium does not have an explicit statutory or constitutional basis. Instead, it was developed through judicial interpretation by the Supreme Court itself, primarily to safeguard judicial independence from executive or political interference.

Under this system, appointments and transfers are recommended by the Chief Justice of India (CJI) in consultation with a group of senior-most judges of the Supreme Court. These recommendations are forwarded to the President of India, and while the executive may raise objections or seek reconsideration, the Collegium’s reiterated recommendations are binding.The evolution of this system can be traced to a series of landmark judgments commonly referred to as the First, Second, and Third Judges Cases, through which the Supreme Court progressively asserted judicial primacy in appointments.

In 2014, Parliament sought to replace the Collegium System by enacting the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act, 2014. The NJAC proposed a six-member commission comprising the CJI, two senior-most Supreme Court judges, the Union Law Minister, and two “eminent persons.” The stated objective was to introduce greater transparency, accountability, and wider participation in the appointments process.

However, in Supreme Court Advocates-on-Record Association v. Union of India (2015), the Supreme Court struck down both the constitutional amendment and the NJAC Act. The Court held that the NJAC violated the basic structure of the Constitution, particularly the principle of judicial independence. It reasoned that the inclusion of executive and political actors in the appointments process created a risk of undue influence and compromised the autonomy of the judiciary.

Supreme Court

The judges of the Supreme Court, including the Chief Justice of India, are appointed by the President.However, under the ‘collegium’ system developed in Supreme Court jurisprudence during the 1980s and 1990s, the Supreme Court heavily influences the appointments of judges.

The Chief Justice of India is the highest judicial position in India and is appointed by the President of India. The Chief Justice presides over the Supreme Court and is responsible for the overall administration of the Indian judiciary. Article 124(1) of the Indian Constitution provides for the establishment of the office of Chief Justice. Other Supreme Court judges are also appointed by the President of India.

Qualifications for Appointment

• The person should be a citizen of India and, has been for at least five years a Judge of a High Court or of two or more such courts in succession; or
• He/ She has been for at least ten years an advocate of a High Court or of two or more such courts in succession; or
• He/ She is a distinguished jurist in the opinion of the President
• The Constitution is silent on the point of minimum age of eligibility for such appointments.

Appointment Procedure

The Department of Justice under the Ministry of Law and Justice hosts the memorandum of procedure of appointment of Supreme Court Judges in its official website in the form of collegium resolutions. It provides the procedure for the appointment of Chief Justice of India, Supreme Court judges, Acting Chief Justice, Ad hoc judges and also provides the procedure required in case of attendance of retired judges in Supreme Court.

High Court

High court judges are appointed by the President of India, and they preside over cases in the high courts. The high courts are the second highest level of courts in India and are in each state of the country.

(i) Chief Justice of the High Court: The Government has, in consultation with the Chief Justice of India, decided as a matter of policy to appoint judges from outside the state as Chief Justices of all High Courts. In case of the initial appointment of a Chief Justice of a High Court, the provisions of Article 217 of the Constitution will have to be followed.

(ii) Acting Chief Justice: Appointment of Acting Chief Justices is to be made by the President under Article 223 of the Constitution. Where, however, it is proposed to appoint an Acting Chief Justice, other than the senior most puisne Judge, the procedure for appointment of a regular Chief Justice will have to be followed.

(iii) Additional Judge: Additional Judges can be appointed by the President under clause (1) of Article 224 of the Constitution. The President can appoint duly qualified persons as additional judges of a high court for a temporary period not exceeding two years.

Qualifications for Appointment

• The Person must be a citizen of India and, has for at least ten years held a judicial office in the territory of India; or
• They have for at least ten years been an advocate of a High Court or of two or more such courts in succession.
• The Constitution does not provide any minimum age for eligibility in the appointment of judges to the court.

Appointment Procedure

The Department of Justice under the Ministry of Law and Justice hosts the memorandum of procedure of appointment of High Court Judges in its official website. It provides the procedure for the appointment of Chief Justice of the High Court, High Court judges, Acting chief justice of the high court, Ad hoc judges, Acting judges, Permanent judges and also provides the procedure required incase of attendance of retired judges in High Court.

The appointment of judges in the High court is through two ways:

(i) Directly from the Bar for about two-thirds of vacancies.

(ii) Through the Judicial services for about a third of vacancies.

The appointment ratio in procedure is pursuant to the resolution passed in the conference of Chief Justices in 1999 and the Supreme Court order in Kuldip Singh v. Union of India.

District Judges

The district judge is the highest judicial authority in the district. He/she possesses original and appellate jurisdiction in both civil and criminal matters. At the district level, the District Court lies at the apex and is the appellate court for all civil and criminal matters. It also plays a supervisory role over other courts, such as those headed by Civil Judges (Senior Division) and Civil Judges (Junior Division).

Qualification for Appointment

• The candidate must be a citizen of India.
• The candidate must have a law degree from a recognized university.
• The candidate must have at least seven years of experience as an advocate.
• The candidate must have a good character and reputation.

Appointment Procedure

In its judgment in the All India Judges Association case, the Supreme Court in interpreting the provisions of Article 233 outlined three ways of appointing District Judges:

(a) directly from Bar i.e. through the District Judge (entry level) Exam conducted either by State public service commission or the State High Court for advocates having at least 7 years of practice and who are of 35 yrs age for about 25% of the vacancy .

(b) Through limited departmental competitive examination i.e., for Judicial officers with at least five years of service as Civil judge (Senior Division) or equivalent thereto for about 10% of the vacancy ,

(c) Through time scale promotion for about 65%  of the total vacancies. Usually, there is no requirement of a minimum number of years of service. But, some states have prescribed a minimum number of years of service in the previous office.

However, the percentage of vacancies which is dedicated to each source or mode of appointment differs by the State government rules. There is no uniform or rigid percentage distribution incase of appointments. For example, Andhra Pradesh appoints based on the percentage ratio of 25:25:50 from direct recruitment, department competitive exam and transfer recruitment respectively incase of vacancies. Other Indian states like Assam, Manipur and Madhya Pradesh also have this breakup of vacancy at 50%, 25% and 25% respectively.

• For Senior Civil Judges and Civil Judges (Junior Division) there are no minimum specified requirements in the Constitution. This gives states considerable leeway to decide on their own. Generally, recruitment to the cadre of Senior Civil Judges occurs through promotion from the Civil Judges (Junior Division) cadre on the basis of merit-cum-seniority, whereas recruitment to the post of Civil Judges (Junior Division) happens via direct recruitment through a competitive examination. There is however wide divergence in practice, and in procedures for appointment across states, especially when it comes to the role of State Public Service Commissions vis-a-vis the High Courts as the conducting authority. In All India Judges Association v. Union of India, the Supreme Court held that candidates seeking to become a Civil Judge (Junior Division) must have practised as an advocate or law clerk for at least three years. The decision overruled the Court’s own Judgement from 2002.

Additional District Judges

The additional district judge is a judicial officer who is appointed to assist the district judge.

Appointment Procedure

The High Court of the state concerned prepares a list of eligible candidates. The list is then sent to the Governor of the state for consideration. The Governor, in consultation with the Chief Justice of the High Court, appoints the additional district judges.

Lower Subordinate Judges

The lower subordinate of district judges are the judicial officers who are responsible for hearing and deciding cases at the initial stages. On the civil side, the Subordinate Judge’s Court is located below the District and Sessions Court. The sub-judge is a judicial officer who is responsible for hearing and deciding cases at the first level. He/she is typically called a munsif.

On the criminal side, the Chief Judicial Magistrate’s Court is located beneath the District and Sessions Court. The judicial magistrate is a judicial officer who is responsible for hearing and deciding cases at the first level. He/she is typically called a judicial magistrate of first class or judicial magistrate of second class.

Appointment Procedure

The Governor of the State appoints judicial officers other than district judges in accordance with rules issued by him in that regard, after consulting with the State Public Service Commission and the High Court of such state.

The scheme for such judicial appointments to Subordinate Courts is outlined in the Judicial Service Rules enacted by the Governors of the several States in accordance with Articles 233 and 234 of the Indian Constitution. Therefore the process, manner and mechanism thereof are governed by such rules.

Role of State Public Service Commission in the appointment of Subordinate Courts

Article 234 provides for the recruitment of persons other than district judges to the judicial service, stipulating that the appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him on that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such States.

The role of the state Public Service Commission (SPSC) in the appointment of judges varies from state to state. In some states, the SPSC is responsible for the entire appointment process: it shortlists candidates based on their merit and then recommends a panel of candidates to the governor, who then appoints one of the candidates from the panel. In other states, SPSC only plays a limited role while the State High Court is responsible and handles the appointment.

The role of the SPSC in the appointment of subordinate judges is important because it ensures that the appointment process is fair and transparent. The SPSC is an independent body that is not influenced by political considerations. This means that the SPSC can select the most qualified candidates for the post of district judge, regardless of their political affiliation.

The Supreme Court in Malik Mazhar case, has devised a process and time frame to be followed for the filling up of vacancies in subordinate judiciary which stipulates that the process for recruitment of judges in the subordinate courts would commence on 31st March of a calendar year and end by 31st October of the same year. The Supreme Court has permitted State Governments / High Courts for variations in the time schedule in case of any difficulty based on the peculiar geographical and climatic conditions in the State or other relevant conditions.

International experiences with Judicial Appointments

Across jurisdictions, judicial appointment systems reflect differing constitutional priorities, balancing judicial independence, democratic accountability, and transparency. Unlike India’s judge-made Collegium system, most democracies rely on constitutionally or statutorily established appointment bodies, often involving a mix of judicial, executive, and clearer procedural safeguards.

United Kingdom

In the United Kingdom, judicial appointments are overseen by the Judicial Appointments Commission (JAC), an independent statutory body established under the Constitutional Reform Act, 2005. The JAC comprises judges, legal professionals, and lay members, and follows a merit-based, open, and competitive selection process. While the executive formally makes appointments, its role is largely ceremonial, with limited scope to reject or reconsider recommendations. The UK model is often cited for its institutional transparency and structured evaluation criteria, while still insulating appointments from political pressure.

United States

The United States adopts a distinctly political model for federal judicial appointments. Judges are nominated by the President and confirmed by the Senate, making the process overtly political and ideologically contested. While this model enhances democratic accountability through elected branches, it has also resulted in intense politicisation of judicial app gridlock. To mitigate concerns about independence, federal judges enjoy life tenure, ensuring decisional autonomy once appointed. The U.S. experience illustrates the risks of excessive political involvement, particularly in polarised political climates.

South Africa

South Africa employs a hybrid system through its Judicial Service Commission (JSC), a constitutionally mandated body that includes judges, members of the executive, legislators, legal professionals, and civil society representatives. The JSC conducts public interviews of candidates, enhancing transparency and public confidence. While the presence of political actors has raised concerns about influence, the openness of the process and constitutional safeguards have generally been viewed as strengths, especially in a post-apartheid context where representativeness and legitimacy are key priorities.

Research that engages with Judicial Appointments

The Supreme Court’s Collegium Resolutions: An Empty Formality? (Vidhi)

The article by Jehosh Paul critically examines the impact of the Supreme Court’s decision to publish Collegium resolutions as a transparency measure. Although resolutions began to be published in 2017 with the stated aim of increasing accountability, the author finds that this move has had limited substantive impact. Analysis of resolutions issued between 2018 and 2019 shows that while factors like merit, seniority, conduct, competence, and representation are officially cited as criteria for elevation, the resolutions provide no concrete evidence or reasoning to justify how these criteria apply to individual candidates. The criteria themselves are often vague — for example, “eminently suitable” remains undefined — and the lack of dissenting voices in resolutions raises questions about the independence and autonomy of individual Collegium members. As a result, making resolutions public has largely proven formalistic rather than meaningfully transparent or accountable.

Discord in the Collegium Provides Rare Insight on Member Deliberations (SCO)

This article highlights a unique instance of visible internal disagreement within the Collegium during the final days of Chief Justice U.U. Lalit’s tenure. When CJI Lalit circulated a letter recommending four candidates for Supreme Court elevation without an in-person meeting, two senior judges objected not to the candidates but to the method of decision-making, insisting that recommendations must follow face-to-face deliberation. This episode reveals how informal norms — such as in-person discussion and collegiality — play an important role in the Collegium’s functioning, even in the absence of formal procedural rules. It also underscores the opacity and lack of documented reasoning behind appointments: even when dissent is noted, the substantive views of differing judges remain undisclosed. Such rare disclosures provide valuable glimpses into the internal dynamics and procedural ambiguities of the Collegium system.

Judicial Appointment in India: Need of the Hour NJAC (IJLR)

This report by Mandeep Singh Yadav and Akshay Kumar critically analyses the evolution of India’s judicial appointments process, tracing the shift from executive primacy to the judge-made Collegium system and culminating in the failed attempt to institutionalize the National Judicial Appointments Commission (NJAC). The author argues that while the Collegium was developed to protect judicial independence, it has resulted in excessive insulation, opacity, and a lack of democratic accountability. Through a doctrinal analysis of the Judges Cases and the NJAC judgment, the article contends that judicial independence need not be equated with exclusive judicial control. Instead, it advocates for a constitutionally grounded appointments body that incorporates limited executive participation, clear eligibility criteria, and procedural transparency, drawing on comparative constitutional practices to suggest that a reimagined NJAC-like mechanism could better balance independence with accountability.

The Gender Gap on the Bench: A Structural and Empirical Study of Judicial Appointments in India (IJLLR)

The analysis by Uttam Kumar Jha and Dr. Tai Chourasiya examines the persistent under-representation of women in India’s higher judiciary through a combination of empirical data and institutional analysis. It demonstrates that despite increased female participation in legal education and the bar, women remain disproportionately excluded from appointments to High Courts and the Supreme Court. The study identifies the opacity of the Collegium system, reliance on informal networks, lack of transparent criteria, and absence of diversity-oriented considerations as key structural barriers. By situating gender disparity within the design of the appointments process itself rather than individual merit deficits, the article argues that meaningful improvement requires systemic reform, including data disclosure, diversity-sensitive evaluation, and accountability mechanisms within judicial selection.

Rethinking Judicial Appointments: Collegium vs. Commission (PRS)

This PRS Legislative Research blog article by Prianka Rao provides a concise policy-oriented overview of India’s debate on judicial appointment mechanisms, particularly in the context of the National Judicial Appointments Commission (NJAC) experiment and the continued use of the Collegium System. The article outlines how Parliament’s 2014 constitutional amendment and the NJAC Act sought to replace the Collegium with a commission that included executive and eminent persons alongside judicial members, aiming to enhance transparency and broader participation in appointments. It explains that the Supreme Court invalidated the NJAC on grounds that executive involvement threatened judicial independence, invoking the basic structure doctrine to justify judicial primacy in appointment decisions. By summarising the constitutional provisions, historical evolution of judicial appointment practice, and recommendations of various expert commissions on alternative models, the PRS piece situates India’s current system within a wider institutional and reformist context, highlighting both the rationale for and critiques of reform proposals.

Challenges

Critique of the Collegium system

Despite its objective of protecting judicial independence, the Collegium System has faced sustained criticism for its lack of transparency, accountability, and diversity. The absence of publicly articulated criteria for selection, coupled with opaque decision-making processes, has led to allegations of nepotism, favouritism, and internal lobbying within the judiciary. The secrecy surrounding deliberations has also limited public scrutiny and undermined institutional legitimacy.

Notably, even in the NJAC judgment, the Supreme Court acknowledged these shortcomings. While invalidating the NJAC, the Court conceded that the Collegium System suffers from serious structural deficiencies and assured that reforms would be undertaken to improve its functioning. However, no substantial or institutionalised reform has materialised since.

Independent bodies such as the Second Administrative Reforms Commission and the 214th Report of the Law Commission of India have similarly criticised the Collegium for being opaque and exclusionary, and have called for a more transparent, participatory, and accountable appointments process.

Until Parliament and the judiciary can arrive at a constitutionally valid and widely acceptable alternative, the Collegium System continues to be the operational mechanism for judicial appointments and transfers in India.

Uncle Judge syndrome

Union Law Minister Kiren Rijiju criticised the judicial Collegium system for fostering an “uncle judge syndrome,” where judges tend to recommend appointments of lawyers they personally know. This dynamic persists because collegium members choose candidates familiar to them, limiting opportunities for equally qualified advocates outside their networks. According to him, this controversy will continue as long as the Collegium system remains in place.

The idea of a judge being “without background” is argued to be a myth. Every judicial appointee carries professional, social, ideological and institutional experiences that shape their outlook. Rather than pretending that judges are neutral blank slates, critics contends that transparency about a candidate’s past including prior affiliations, judgments, writings, or public positions is essential for accountability.

Blurring line of executive and judiciary

Under the Constitution, judges are formally appointed by the President, acting on the aid and advice of the government, after consultation with the Chief Justice of India. This is the democratic logic that the executive derives legitimacy from elected representatives, while the judiciary is appointed through a consultative process.

However, the balance of power in appointments has shifted over time as a strong executive may attempt to influence or “pack” the courts with ideologically aligned judges. The judiciary, in turn, has sought primacy in appointments to safeguard independence.

Thus, judicial appointments lie at the heart of the power dynamic between the Prime Minister and the CJI. The judicial appointments, promotions and transfers is an ongoing struggle for institutional dominance between the executive and judiciary. On one hand, excessive executive control threatens judicial independence. On the other, absolute judicial control risks democratic accountability concerns.

Way forward

Lack of transparency in the Collegium system for appointing judges in India fosters secrecy around how and why candidates are selected which sustains nepotism and unexamined political bias. Judges with clear political ties or partisan statements are elevated despite concerns, while others critical of the ruling establishment are stalled or withdrawn consent. It is argued that the problem isn’t merely political beliefs per se, but partisanship and prejudice, especially when past conduct shows bias against specific citizen groups. The call is for a more transparent and formal mechanism within the Collegium to record, examine and publish information about candidates’ past conduct, affiliations, and any complaints raised, so that political prejudice is meaningfully considered during appointments rather than left opaque.