In India, Justices of the Supreme Court and judges of India’s 25 regional High Courts are appointed through a process known as the Collegium System. Although the Constitution vests the appointment power in the President of India, the President may only appoint a Supreme Court or High Court nominee recommended by a body called the Collegium, which consists of the Chief Justice, the four other senior-most Supreme Court Justices, and, in the case of High Court nominees, the senior-most judge on the High Court of the prospective appointee.
This system, which developed over the 1980s and 1990s as part of a decades-long tug-of-war between the branches of government, is controversial. Some critics have argued that the Collegium, which operates largely as a black box, leads to the selection of judges based on cronyism and quid pro quos, regardless of a nominee’s merit or scruples. Notably, critics contend, the Collegium System allows for the appointment of corrupt judges because the secrecy of the Collegium’s deliberations prevents accusations of impropriety against those nominees from becoming public. In buttressing this claim, critics point to instances of High Court judges who have been credibly accused of corruption, including one who was formally charged at the end of last year for taking a bribe in exchange for a favorable verdict. Critics also contend that the Collegium System exacerbates judicial corruption through another, more indirect channel: The Collegium’s slow pace has left hundreds of High Court seats vacant, which exacerbates the Indian court system’s extreme case backlog. That backlog, in turn, encourages petty bribery, as many frustrated litigants would prefer to bribe a judge or court official to jump the line or get a case dismissed rather than wait years for a final resolution. Even former Chief Justice V.N. Khare acknowledged that bribes for bail are rampant in the lower courts given the delays litigants may face down the line.
In response to these concerns, the Indian Parliament, led by Prime Minister Narendra Modi, voted overwhelmingly in 2014 to amend the Indian Constitution to replace the Collegium with a National Judicial Appointments Commission (NJAC) composed of representatives from all three branches. But before the law could go into effect, the Supreme Court ruled it an unconstitutional threat to judicial independence. While calls for reform temporarily abated, just last December a member of Modi’s cabinet expressed support for reintroducing the NJAC amendment to replace the Collegium System.
Any such attempt, however, would be misguided. Anti-Collegium reforms like the NJAC would undermine India’s hard-won judicial independence, and the corruption problem these reforms would purport to solve has been greatly exaggerated.
The struggle for judicial independence in India can be traced back to the 1960s and 1970s, during Indira Gandhi’s reign as Prime Minister. Back then, the central government had near-complete control over Supreme Court and High Court appointments, constrained only by the nonbinding recommendations of the Chief Justice. Gandhi focused on appointing judges who would be willing to uphold her constitutionally controversial policies, such as the nationalization of banks and the abolition of the privileges and privy purses of India’s former royal families. In 1973, Gandhi departed from tradition by appointing a pro-government judge to the powerful post of Chief Justice, skipping over the three more senior judges who had previously ruled against her policies. Two years later, when Gandhi declared a State of Emergency, High Court judges who ruled against her government’s Emergency policies were transferred en masse to less influential posts.
The Collegium System was developed in response to the executive overreach that characterized the Gandhi era. Over the two decades following Gandhi’s leadership, the Supreme Court developed the Collegium System to reclaim its independence. To the Court, the only way to do this was to cut the other branches out of the appointment process entirely.
A reform like the NJAC would risk reversing the decades of post-Emergency progress. The NJAC amendment would allow Parliament to make changes to the appointment process through ordinary legislation—that is, with a simple majority vote. Given that the Prime Minister’s party typically holds a majority in Parliament, this provision would shift full control of the appointment process to the central government. Further, the NJAC would be composed of six members: the Chief Justice, two senior Judges, the central government’s law minister, and two “eminent persons” nominated by the Prime Minister, Chief Justice, and Opposition Leader. Despite this even number, the proposal contained no tie-breaking mechanism. A continually deadlocked commission could give parliament an excuse to pass legislation to add a seventh member from its own ranks, entirely depriving the judiciary of a voice in appointments by relegating it to the minority. Lastly, the proposal contained a vague quorum provision that could have allowed the NJAC to hold a meeting without any judges present at all.
Moreover, it is extremely unlikely that the NJAC amendment would do much of anything to address India’s judicial corruption problem. The bulk of this corruption takes place in the lower courts, which are not part of the Collegium System. To date, there have been no substantiated allegations of corruption at the Supreme Court level. Indeed, many observers consider the Indian Supreme Court to be the country’s most trusted and incorruptible public institution. As for the High Courts, there have been only a handful of such instances—out of thousands of judges who have served on the bench. The recent barrage of sensational corruption accusations has been unsubstantiated, and in most cases the evidence of impropriety is tenuous at best. Furthermore, it is unclear that an NJAC-like mechanism would have prevented these few cases of High Court corruption that have occurred; most High Court judges are appointed directly from the Bar, so they often have minimal public track records to be assessed prior to nomination.
As for the complaint that the Collegium’s slow pace contributes to the extreme judicial delay, which in turn contributes to judicial corruption: even if there is some truth to this, shifting the power of selection from the Collegium to the NJAC is unlikely to make much difference. The NJAC—a body of six people—would be tasked with filling hundreds of high court vacancies with no mandated timeline. This is no different from the current system.
To be sure, the critics have a point when they complain about the opacity of the Collegium System. How can we assess the integrity of the system if we know nothing about its inner workings? But it would be possible to address this concern with reforms that increase the transparency of the Collegium process, for example by requiring the Collegium to publish reports of its findings, deliberations, and selection criteria. An additional possibility, which was suggested by a retired Justice, would be to hold televised confirmation hearings similar to those in the United States.
As for the concern about the slow pace of appointments and the large number of vacancies, there are other ways to address this problem as well. The Modi government, which must sign off on all Collegium appointments, had been sitting on over 100 recommendations made by the Collegium last year. In an attempt to move things along, the Supreme Court issued a timeline for the government to respond to the Collegium’s slate of recommendations, which led to the quick approval of most of those nominees. This promising development shows that codifying a timeline through legislation could help address the appointment logjam. In addition, regular status updates from both the Court and central government would allow members of parliament, the judiciary, and citizens alike to monitor the status of appointments.
In sum, while the Collegium System is far from perfect, and judicial corruption and inefficiency are serious problems, these problems can and should be addressed without sacrificing the Indian judiciary’s hard-won independence. Better alternatives exist to increase accountability and reduce corruption in India’s highest courts.
I think this is a fascinating discussion of the difficulties of squaring the circle of independence and judicial corruption in India. I especially appreciated your suggestions for improving the transparency of the Collegium System. I do wonder though about the suggestion of holding American-style confirmation hearings for judicial appointments. Although such hearings provide an opportunity for public and political scrutiny of nominees, they seem, at least in the US, to focus more on hot button political issues than they do on the integrity and qualifications of the nominees. I wonder if additional way of improving transparency might be to incorporate something like the ABA judicial nominee rating system into the process, with a requirement that the NJAC explicitly address the recommendation (or lack thereof).
Now that the Jackson confirmation hearings have come to a close in the U.S., I have the same concerns about televised hearings. I think it could be an interesting way to get citizens involved with the process, but I do doubt whether it would make a substantive difference in recruiting better judges in India. I think some sort of rating system could be a great and easily achievable first step towards reform, although I would be curious to see how that could affect candidates from marginalized backgrounds, which has been a focus of the indian judiciary recently (see https://ash.harvard.edu/files/how_judicial_qualification_ratings_may_disadvantage_minority_and_female_candidates.pdf).
Thanks for the excellent overview of how appointments are made in India’s judicial system. What’s striking here is that they’re trying to give the government a leading role in judicial appointments, and not just dilute the exclusive role of senior judges. It would be a different matter if they were only inserting parliamentarians in the process with equal representation from the government and the opposition, so that the system would not be unreasonably skewed in the favor of the former. Such an amendment would of course be open to debate too since there would be arguments about its pros and cons, but what they’re doing right now is clearly a brazen attempt to concentrate power in government hands. And this is part of a larger pattern of autocratic behavior by the right wing extremist government of Modi.
I really appreciate the comment! I agree that the proposed reforms from the central government really do seem to be more about power than about corruption. I am hoping that the parties can settle their disagreements and come up with some sort of reform that could really make a meaningful difference.
Josh, this is another wonderful post that provides important historical context for contemporary issues of corruption in India. From one of the linked articles, it appears that the timeline for the government to respond to the Collegium’s judicial recommendations is 3-6 weeks. I’m curious if you have any thoughts on whether that is an appropriate period.
On the one hand, I appreciate the need to hurry up a process that has led to such severe logjams. On the other hand, though, I worry that too hasty a confirmation process might exacerbate rather than solve any corruption problems within the High Courts. In other words, it seems that there needs to be a balance between quickly confirming and properly vetting. Assuming that other countries have some kind of judicial confirmation timeline, it would be interesting to see if there is evidence that certain time frames are better than others for ensuring that judges are appointed while still allowing for a full vetting process.
Thanks, Logan! I think this is a really interesting point. Perhaps from the Collegium’s perspective, the government approval is merely a formality, given that the courts have maintained their independence in the process for so long. If so, the quick timeline would make sense, especially if the Collegium already does its own vetting. But from the government’s perspective and an anticorruption lens, I think you make a great point that a rushed approval process may be counterintuitive. I would be curious to see why the government is taking so long to approve recommendations. Is it genuine due diligence? Or a more sinister attempt to stall the process? Related to Justin’s comment above, I believe that most of the actual vetting process for Supreme Court nominees in the U.S., for example, takes place before a nominee is even sent to the Senate for confirmation. I wonder, then, where/when most of the vetting takes place in the Collegium process in India.