The NJAC Act is the shortest lived constitutional experiment in the history of Indian judicial appointments, and the collegium verdict that destroyed it is among the most consequential judgments the Supreme Court has delivered on its own institutional position. Between commencement on 13 April 2015 and judgment on 16 October 2015, a six member commission created by a constitutional amendment stood in the place of the collegium, and at the end of those six months the commission was gone, the amendment was void, and the collegium stood restored by the same interpretive route that had created it. The argument has never ended, because the judgment answered one question and left another hanging. It settled who may not appoint judges. It directed a reform of how judges are appointed, through a revised Memorandum of Procedure addressing eligibility, transparency, a secretariat and complaints, and that reform was not completed in the decade that followed.

This article is a constitutional account of that sequence, written to the standard the brief for the subject demands. It states what the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 (Act 40 of 2014) provided, in their own terms. It states the case for the commission as its proponents state it and the case for judicial primacy as its proponents state it, each at full strength and neither adopted in the stating. It sets out the antecedents without which the collegium cannot be understood, because the collegium is a judicial construction and not a constitutional text. It records the bench, the majority and the dissent with precision, because public discussion of the case routinely gets the division wrong. And it gives the Memorandum of Procedure the structural place it deserves, because the unfinished memorandum is the finding that organises everything after 2015: the Court struck down the commission and ordered a reform it has not received, and the criticisms of the collegium that the amendment was said to answer remain unaddressed by the remedy the Court itself prescribed. The wider field of courts legislation in which this dispute sits is mapped in the guide to the laws that shape India’s courts, and this article owns only the appointments controversy within that field.

The two instruments and what each one did

Two instruments were enacted together, and keeping their separate functions apart is the first discipline of the subject. A commission of this kind could not be created by ordinary legislation alone, because the Constitution itself prescribed the appointment process it was to replace. The constitutional amendment therefore did the structural work, and the ordinary Act did the procedural work, and the challenge succeeded against both because the Court treated the design as a single scheme.

The Constitution (Ninety-ninth Amendment) Act, 2014 received the assent of the President on 31 December 2014. It substituted the provisions of Articles 124 and 217 governing appointment of judges of the Supreme Court and the High Courts, and the provision in Article 222 governing transfer of High Court judges, so that appointment and transfer would be made by the President on the recommendation of a National Judicial Appointments Commission rather than after the consultation the original text prescribed. It inserted Article 124A, constituting the Commission. It inserted Article 124B, setting out the Commission’s functions. And it inserted Article 124C, empowering Parliament by law to regulate the procedure for appointment of the Chief Justice of India and other judges, to empower the Commission to lay down procedure by regulations, and to define the duties of the Commission and related matters. Both the amendment and the Act were brought into force on 13 April 2015.

The National Judicial Appointments Commission Act, 2014, Act 40 of 2014, received assent on the same day, 31 December 2014, and commenced on the same appointed day. Where the amendment created the body and named its members, the Act supplied the machinery: the reference of vacancies, the procedure for selection of Supreme Court judges, the procedure for selection of Chief Justices and judges of the High Courts, the eliciting of views from Governors and Chief Ministers and from the Chief Justice of the High Court concerned, the power of the President to require reconsideration of a recommendation, and the obligation of the Commission to make regulations. The Act also contained the provision that became decisive in the litigation, and it is dealt with in its own section below because the entire constitutional argument can be made to turn on it.

One feature of the scheme deserves notice at the outset because it is regularly omitted from accounts written from either side. The Commission was not a body the executive controlled by numbers. Of its six members, three were judges, one was a minister and two were eminent persons chosen by a committee on which the judiciary held one of three seats. Whether that composition preserved judicial primacy was the question the case decided, and it cannot be answered by counting heads alone, because the Act’s voting rule meant that head counting was not how the body would have decided anything. Composition and voting rule have to be read together, and the majority in the case read them together. That reading is set out after the design itself has been stated in full.

What did the 99th Amendment insert into the Constitution?

It inserted Articles 124A, 124B and 124C. Article 124A constituted the National Judicial Appointments Commission and named its six members. Article 124B set out its functions, namely recommending appointments and transfers and ensuring that recommended persons are of ability and integrity. Article 124C empowered Parliament to regulate the appointment procedure by law and to empower the Commission to make regulations.

The composition of the Commission, member by member

Article 124A provided that the Commission would consist of the Chief Justice of India as Chairperson ex officio, the two other senior most judges of the Supreme Court next to the Chief Justice, the Union Minister in charge of Law and Justice, and two eminent persons. The eminent persons were to be nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or, where there is no such Leader, the leader of the single largest opposition party in the House. One of the two eminent persons was to be nominated from among persons belonging to the Scheduled Castes, the Scheduled Tribes, other backward classes, minorities or women. An eminent person was nominated for a term of three years and was not eligible for renomination.

Each element of that composition carried an argument, and the arguments were rehearsed exhaustively in the case and in the public debate that accompanied it. The presence of the three senior most judges gave the judiciary half the seats and the chair. The presence of the Law Minister gave the executive a seat at the table of a kind it had held informally through the consultation process, formalised and made visible. The eminent persons gave the body members drawn from outside both the judiciary and the government of the day, answering the objection that appointment was a closed transaction between two branches. The nominating committee for those persons mixed the executive, the judiciary and the opposition, so that no single institution chose them. The reservation of one eminent person seat across the listed categories answered the objection that appointments processes drew on too narrow a social field. The fixed three year term without renomination was meant to insulate the eminent persons from any incentive to please a nominator in hope of a second term.

Against each element a counter argument was made, and those too belong to the design rather than to the rhetoric around it. Half the seats is not a majority, and a body in which the judicial members could be outvoted three to three with no casting provision that favoured them was not, on the primacy view, a body in which the judiciary led. The Law Minister is a member of the government, and the government is the largest single litigant before the higher judiciary, so a ministerial seat is a litigant’s seat. The eminent persons were undefined by qualification: the amendment prescribed no professional standing, no experience and no disqualification, so the category could be filled by persons of distinction in any field or, on the critics’ account, by persons whose distinction was political. The nominating committee had the Prime Minister and the Leader of Opposition on it, so the executive had a voice in choosing the very members said to be independent of it. And the three year term, while barring renomination to the Commission, did not bar other office, so the insulation argument had a limit its supporters acknowledged only rarely.

Article 124B gave the Commission its functions in general terms: to recommend persons for appointment as Chief Justice of India, judges of the Supreme Court, Chief Justices of High Courts and other judges of High Courts; to recommend transfer of Chief Justices and judges of High Courts from one High Court to another; and to ensure that the person recommended is of ability and integrity. The detail was left to the Act and to regulations. That distribution of labour between the constitutional text, the statute and the regulations is itself part of the controversy, because it meant that the safeguards a reader might look for in the amendment, on criteria, on the zone of consideration, on the recording of reasons, were not in the amendment at all. They were to come from Parliament and from the Commission, and a constitutional challenge is decided on the scheme as enacted, not on the regulations that might later have softened it.

The veto: the provision on which the design turned

Section 5 of the National Judicial Appointments Commission Act, 2014 dealt with the procedure for selection of judges of the Supreme Court, and Section 6 dealt with the corresponding procedure for the High Courts. Each contained a proviso in the same terms: the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation. Any two members, of six, could therefore prevent a recommendation. No reason had to be recorded for the disagreement, no category of member was excluded from the power, and no mechanism resolved a deadlock in favour of any group within the body.

The proviso was defended on a ground that deserves to be stated fairly, because it was not a drafting accident. A two member block is a supermajority rule in substance. It meant that no candidate could be recommended over the objection of any two members, which its defenders presented as a consensus requirement: appointments to the higher judiciary should command broad agreement inside the body, and a candidate acceptable only to a bare majority of a six member commission was, on this view, a candidate whose appointment would carry a taint of division into the office itself. Defenders pointed out that the block ran in every direction. Two judges could block a candidate favoured by the minister and the eminent persons, just as the minister and one eminent person could block a candidate favoured by all three judges. The rule was symmetrical on its face, and symmetry was offered as the answer to the charge of executive capture.

The majority’s answer to that symmetry argument is the analytical core of the judgment, and it is set out here in the form the case for primacy gives it, with the adjudication reserved for later. Symmetry of blocking power is not symmetry of position. The judicial members were the members the Constitution, on the Second Judges case reading, required to hold primacy, which means the decisive voice. A rule under which the three judicial members, united, could still be prevented from recommending a candidate by the Law Minister and a single eminent person is a rule under which the judicial voice is not decisive but defeasible by a minority drawn from outside the judiciary. The objection was not that the executive could impose a candidate. The Act gave nobody that power, since two judges could block any name. The objection was that the executive, through one minister and one ally among the eminent persons, could exclude every candidate the judiciary favoured, and that the power to exclude, exercised repeatedly, is a power over the composition of the bench as real as the power to select. A government that cannot choose its judges but can veto the judiciary’s judges holds a shaping hand in appointments, and it holds it in litigation to which it is a party.

There was a further objection to the eminent persons limb of the veto that did not depend on the minister at all. Two eminent persons, neither of them a judge, neither of them accountable to any electorate, neither required by the amendment to possess legal or judicial experience, could between them block a recommendation supported by the Chief Justice of India, the two senior most judges and the Law Minister together. On the primacy account that combination made the design indefensible without reaching the executive question at all: the decisive negative voice could rest with the two members whose qualification for holding it was least specified anywhere in either instrument.

How did the two member rule in the NJAC Act work?

Sections 5 and 6 provided that the Commission shall not recommend a person if any two of its six members do not agree. The rule was symmetrical, so two judges could block any name, but the Law Minister with one eminent person could block a candidate all three judicial members supported, the combination the majority treated as fatal to primacy.

Where the collegium came from: a construction, not a text

No account of the verdict is intelligible without the antecedents, and the brief for this article requires them to be set out in full because the collegium is the single most misunderstood institution in Indian public law. Articles 124(2) and 217(1) provide that judges of the Supreme Court and the High Courts are appointed by the President after consultation with specified judicial functionaries, the Chief Justice of India being a mandatory consultee for appointments other than his own. The text does not use the word collegium. It does not say that the opinion of any consultee prevails. It does not describe a committee, a meeting, a vote or a recommendation. Everything that the word collegium denotes was built by judgment, in three decisions across seventeen years, and the Ninety-ninth Amendment was the first and only attempt to replace that construction with a text.

The first decision is S. P. Gupta v Union of India, decided in 1981 and known as the First Judges case. The question was what consultation meant where the Constitution required the President to consult the Chief Justice. The majority held that consultation did not mean concurrence. The Chief Justice’s opinion was entitled to great weight, but it was an opinion among those of the constitutional functionaries consulted, and the executive retained the final word, exercisable for cogent reasons. On that reading the position before 1993 was executive primacy moderated by a duty to consult, and it was the reading on which appointments were made for the first four decades of the Republic, a period that included episodes its critics cite as the demonstration of what executive primacy produces, among them the supersession of senior judges in the appointment of the Chief Justice in 1973 and again in 1977.

The second decision is Supreme Court Advocates-on-Record Association v Union of India, decided in 1993 by a bench of nine judges and known as the Second Judges case. It overruled the First Judges case on the point that mattered. Consultation in Articles 124 and 217 was read as concurrence in this setting: the opinion of the Chief Justice of India, formed collectively after consulting the two senior most judges of the Supreme Court, carried primacy, and the executive could return a recommendation for reconsideration but, if the recommendation was reiterated, the appointment was to be made. The reasoning rested on independence of the judiciary as a structural value: a judiciary whose members are chosen by the executive they sit in judgment on is not independent in the sense the Constitution requires, and the appointment process is where independence is secured or lost before a single case is heard.

The third decision is the advisory opinion in In re Special Reference No. 1 of 1998, known as the Third Judges case, delivered on a reference by the President. It settled the composition and working of the collegium. For appointments to the Supreme Court, the collegium is the Chief Justice of India with the four senior most judges. For appointments to a High Court, the recommendation moves through the Chief Justice of that court with his two senior most colleagues and is considered by the Chief Justice of India with the two senior most judges of the Supreme Court, with the views of judges conversant with the affairs of the High Court concerned to be taken. The opinion also addressed the weight of seniority, the treatment of a recommendation on which the collegium was divided, and the position where a consultee’s view was adverse. It is the 1998 opinion, more than the 1993 judgment, that supplies the operating rules of the system that the amendment sought to displace.

Three consequences of that lineage matter for everything that follows. First, the collegium has no statutory basis, no secretariat supplied by law, no published criteria in any instrument and no mechanism for complaints; those absences are not oversights in a statute but the predictable features of a system that exists as case law. Second, the collegium’s authority is entirely derivative of the proposition that judicial primacy in appointments is required by the independence of the judiciary, so any challenge to primacy is a challenge to the whole structure. Third, the executive’s role under the construction is real but subordinate: governments supply inputs, intelligence and objections, may return a name once, and appoint when a name is reiterated. Criticism of the collegium, when it is made precise, is almost always criticism of one of those three consequences rather than of any individual appointment.

Passage, ratification and commencement

The amendment’s democratic credentials were unusually strong, and they were placed at the front of the case for the commission in the litigation and have remained at the front of it since. The Constitution (One Hundred and Twenty-first Amendment) Bill, 2014 was introduced in the Lok Sabha on 11 August 2014 alongside the National Judicial Appointments Commission Bill. The Lok Sabha passed the amendment bill on 13 August 2014 and the Rajya Sabha passed it on 14 August 2014, in each House with support that contemporary reporting and the Government’s own statements described as unanimous or approaching unanimity across party lines. Because the amendment altered provisions within the proviso to Article 368(2), it then required ratification by the legislatures of not less than one half of the States, and it was ratified by sixteen State legislatures before the President gave assent on 31 December 2014; the route by which an amendment of that character travels, and the class of amendments for which State ratification is a condition of validity, are set out in the guide to the constitutional amendment process in India.

Two things are worth separating in that record, because the argument from democratic mandate tends to run them together. The first is that the support was genuinely broad: parties that agreed on little else voted for the commission, State legislatures controlled by different parties ratified it, and the proposal had been under public discussion in one form or another for decades, through the Constitution (Sixty-seventh Amendment) Bill of 1990, the National Commission to Review the Working of the Constitution chaired by Justice M. N. Venkatachaliah, which reported in 2002 and recommended an appointments commission, and the Constitution (Ninety-eighth Amendment) Bill of 2003. The NJAC was not an improvised measure. The second is that breadth of support is not the test the Court applied, and could not have been. Since Kesavananda Bharati v State of Kerala in 1973, a constitutional amendment in India is valid only if it does not damage or destroy the basic structure of the Constitution, and that doctrine, whose features and limits are the subject of the article on the basic structure doctrine, is deliberately indifferent to the size of the majority that enacted the amendment. A unanimous Parliament cannot amend away a basic feature. That is the doctrine’s point, and it is also the point on which the democratic objection to the verdict concentrates its force.

Commencement came on 13 April 2015, by notification, for both instruments on the same day. Challenges were already before the Court, and the litigation history contains an irony the article should record plainly: petitions filed against the bills before commencement had been dismissed as premature, and once the instruments were in force the Court heard the challenge on merits without staying the Act, so the Commission existed in law for six months while its validity was under consideration. It made no appointment. No recommendation of the Commission was ever acted on, no eminent person took part in selecting a judge, and the veto provision was never exercised. The NJAC is therefore a design that was argued about in the abstract from beginning to end, and every claim made for or against its working is a claim about a scheme that never operated. That fact cuts against confident assertions on both sides, and it should discipline any verdict offered on the design as opposed to the doctrine.

The judgment of 16 October 2015

The challenge was heard by a Constitution Bench of five judges: Justice J. S. Khehar, Justice Madan B. Lokur, Justice Kurian Joseph, Justice Adarsh Kumar Goel and Justice J. Chelameswar. Judgment was delivered on 16 October 2015 in Supreme Court Advocates-on-Record Association v Union of India, reported at (2016) 5 SCC 1, the same case name as the Second Judges case twenty-two years earlier, which is why the 2015 decision is sometimes called the Fourth Judges case. By a majority of four to one, the Court held the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 unconstitutional and void. Justice Khehar wrote the leading opinion for the majority, Justices Lokur, Joseph and Goel delivered separate concurring opinions, and Justice Chelameswar dissented. The consequence stated in the judgment was that the system of appointment of judges as it existed before the amendment, namely the collegium as constructed by the Second and Third Judges cases, stood revived.

The majority reasoning can be stated in four propositions, and it is better stated in propositions than paraphrased into a slogan about judicial independence. First, the independence of the judiciary is a part of the basic structure of the Constitution, and the appointment process is not external to that independence but one of its components, because the manner of choosing judges determines the conditions under which they will later decide cases involving the state. Second, it follows from the Second Judges case, which the majority treated as having settled the constitutional position, that primacy of the judiciary in the appointment process is itself an element of that independence: the judicial voice must be not merely present but decisive. Third, the scheme of the amendment and the Act did not preserve that primacy. The presence of the Union Minister in charge of Law and Justice and of the two eminent persons, in a body of six in which the judicial members held half the seats, and in which any two members could prevent a recommendation, meant that the judicial members could be outvoted in effect by a combination that included no judge at all beyond the two needed to block. Fourth, the defect was not curable by reading down, because it lay in the composition and the voting rule that the instruments themselves prescribed, so both instruments had to fall together, the Act with the amendment that alone could sustain it.

Precision about what the majority did not hold is as important as the propositions it did hold. It did not hold that the executive may have no part in appointments; the consultation and inputs that the collegium system itself allows were not disturbed. It did not hold that a commission is impermissible in principle; the reasoning was addressed to a composition and a veto that extinguished primacy, and a differently constructed body was not before the Court. It did not hold that the collegium is a good system, and the majority opinions are candid about its shortcomings, which is why the bench moved directly from the verdict to hearings on improving it. And it did not rest on any defect in the manner of the amendment’s passage: the ratification and the majorities were not impugned, and the invalidity was substantive, a matter of what the amendment did to a basic feature rather than how it was enacted.

Who sat on the bench that decided the NJAC case?

A Constitution Bench of five judges: Justice J. S. Khehar, Justice Madan B. Lokur, Justice Kurian Joseph, Justice Adarsh Kumar Goel and Justice J. Chelameswar. Justice Khehar wrote the leading opinion for the four judge majority and Justice Chelameswar wrote the dissent. The judgment was delivered on 16 October 2015 and is reported at (2016) 5 SCC 1.

The dissent of Justice Chelameswar

The dissent is widely cited and less widely read, and the brief for this article identifies that gap as one of the things the article exists to correct. Justice Chelameswar upheld the Ninety-ninth Amendment and the Act. His reasoning proceeded from a different assessment of what the basic structure required: primacy of the judiciary in the sense of an exclusive and final judicial voice was, on his view, not the only arrangement consistent with independence, and a body in which the judiciary held half the seats and the chair, and in which two judicial members could block any recommendation, did not subordinate the judiciary to the executive. The veto that the majority treated as a negation of primacy he treated as a mutual check, and the presence of the Law Minister and the eminent persons he treated as a source of information and accountability in a process that had suffered from having neither.

The enduring part of the dissent, however, is not its defence of the Commission but its indictment of the collegium, delivered from inside the institution and from inside the collegium itself. Justice Chelameswar wrote that the proceedings of the collegium are kept opaque and inaccessible both to public and to history, barring occasional leaks, and that the system had produced what he described as unwholesome trade-offs within the collegium and accommodations between the judicial and executive branches that a commission could have checked. He questioned the assumption that judicial participation guarantees either merit or integrity, and he treated transparency not as an administrative refinement but as a constitutional value that the collegium’s practice failed. Those passages have been quoted in every subsequent debate, by holders of ministerial office and by critics of the judiciary, and they carry a weight that a similar passage in a political speech would not, because the author was a sitting judge who participated in the system he described.

Two sequels give the dissent a practical afterlife. In September 2016 Justice Chelameswar declined to attend collegium meetings and wrote to the Chief Justice of India recording his objection to the manner in which its decisions were taken and recorded, while continuing to give his views on files in writing. And in January 2018 he was one of the four senior most judges who addressed a press conference about the administration of the Court, an event without precedent in the institution’s history. Neither episode changed the law. Both are part of the record a reader needs in order to understand why the dissent is not a footnote: the judge who would have upheld the commission spent the remainder of his tenure pressing, from within, the complaint about opacity on which his dissent rested.

The case for the commission, at full strength

The stance charter of this series requires each side of a contested question to be given in its strongest form, in the voice of those who make it, before any verdict is offered. The case for the commission, as made by its parliamentary supporters, by successive Law Ministers and by constitutional commentators who defended the amendment, runs as follows.

Appointment of judges by judges is a democratic anomaly. In no comparable constitutional democracy does the judiciary hold the decisive voice in its own selection without a counterweight. In the United Kingdom, the Judicial Appointments Commission for England and Wales, created by the Constitutional Reform Act 2005, has a lay chair and a mixed membership in which judges are a minority. In South Africa, the Judicial Service Commission includes the Minister of Justice, representatives of the legal profession, members of the National Assembly and delegates of the National Council of Provinces alongside the Chief Justice and the President of the Supreme Court of Appeal. In the United States, federal judges are nominated by the President and confirmed by the Senate, a purely political process that has not destroyed the independence of the federal bench in deciding cases against the government. India is the outlier, and it became the outlier not by constitutional design but by interpretation in 1993.

The composition gave the judiciary a position no other institution enjoyed in any appointments process. Three of six seats, the chair, and a blocking power exercisable by any two of them meant the judiciary could prevent any appointment it opposed. What the judiciary lost was not a voice, and not a veto, but exclusivity. To describe the loss of exclusivity as the destruction of independence is, on this argument, to equate independence with insulation, and insulation is not a constitutional value. Judges who are independent in their tenure, their salaries, their removal and their jurisdiction do not become dependent because a minister sat in the room when they were chosen.

The democratic mandate was of a kind Indian constitutional amendments rarely carry. Both Houses passed the amendment with support described at the time as unanimous, sixteen State legislatures ratified it, and the proposal had been recommended in substance by the National Commission to Review the Working of the Constitution in 2002 and had been attempted by governments of different political complexions. When a measure of institutional design attracts that breadth of agreement across parties and across the federal structure, a court that strikes it down is not correcting a legislative excess but substituting its judgment on a question the Constitution’s text left open. The basic structure doctrine, on this argument, was developed to prevent the destruction of the Constitution’s identity, in cases concerning the subversion of elections, the abolition of judicial review and the exclusion of amendments from scrutiny. Applying it to the membership of an appointments body extends it from the protection of the Constitution’s core to the supervision of institutional design, and each extension makes the doctrine less a limit and more a general power of constitutional revision in the Court.

The collegium’s record supplied the practical case, and it is set out in the terms its critics use. A system with no published criteria, no record of reasons, no advertisement of vacancies, no secretariat, no mechanism for receiving complaints and no obligation to consider any candidate outside a circle known to its members will select from a narrow field and will not be able to demonstrate that it has not. Critics including the Law Commission of India in its 230th Report of 2009, which addressed reform in the judiciary and recorded the widespread criticism of the appointments process, and Justice Chelameswar in dissent, argued that opacity is not a side effect of the collegium but its operating condition, and that a body required to sit with outsiders, to act through a statute and to frame regulations would at least have been visible. On this side of the argument, the NJAC’s defects were capable of correction by regulation and by practice. The collegium’s defect is structural and self perpetuating, because the only institution that can reform it is the one that benefits from its informality.

The case for judicial primacy, at full strength

The case for primacy, as made by the petitioners in the case, by the majority in the judgment and by the Bar bodies that defended the collegium’s constitutional position, runs as follows.

The executive is the largest litigant in India. The Union, the States, their instrumentalities and their officers are parties to a very large share of the litigation in the higher judiciary, as respondents in service and land and tax matters, as respondents in challenges to legislation and executive action, and as the prosecuting authority in criminal appeals. A process in which that litigant holds a decisive or a blocking voice in the selection of the judges who will hear its cases creates a structural conflict that no assurance of good faith removes. Independence of the judiciary is not principally about the character of individual judges. It is about whether the institution’s composition is determined by a party to the disputes the institution decides. A judge who knows that elevation, transfer or appointment to a higher bench requires the assent of a minister, or the absence of a ministerial block, has an incentive that operates whether or not it is ever acted on, and the appearance of that incentive is itself a constitutional harm because public confidence in adjudication depends on it being absent.

Primacy is the mechanism the Constitution’s scheme was read to require, and the reading was not invented in 2015. It was the holding of a nine judge bench in 1993, reached after the experience of the 1970s, when executive primacy in appointments coexisted with the supersession of senior judges, with punitive transfers during the Emergency and with a declared executive expectation of a committed judiciary. The historical argument is central to this side of the case and is rarely answered by the other side on its own terms: the question is not whether executive participation is objectionable in a well ordered polity in the abstract, but whether it is safe in a polity whose own history contains a period in which the appointments and transfer powers were used as instruments of pressure. Constitutional design in India has repeatedly been written against that memory, and the Second Judges case is one instance of it.

The veto was the specific and sufficient defect. Even if a mixed commission were acceptable in principle, this commission allowed any two members to defeat a recommendation. The Law Minister and one eminent person, a person chosen by a committee on which the Prime Minister sat and whose qualifications the Constitution did not specify, could together nullify the united view of the Chief Justice of India and the two senior most judges of the Supreme Court. A rule that produces that result does not give the judiciary primacy in any sense the word can bear. Nor does the symmetry of the veto save it. That two judges could block an executive favourite is a protection against imposition. It is not a substitute for the power to appoint, and a judiciary that can only prevent, and never secure, the appointment of the candidates it judges best is a judiciary whose bench will be shaped over time by the intersection of what it wants and what others will permit.

The eminent persons limb compounded the problem rather than mitigating it. Two members with no prescribed qualification, no security of tenure beyond a three year term, no accountability to any body and no obligation to record reasons held, in combination, the same blocking power as the Chief Justice. Accountability in the commission’s design flowed to nobody: the judicial members were accountable to no electorate, the minister to Parliament in general terms but not for particular blocks he need not explain, and the eminent persons to no one at all. A reform whose stated object was accountability produced, on this argument, a body less accountable than the collegium it replaced, because the collegium’s members are at least identifiable, senior and acting within an institution whose resolutions could be and later were published.

Finally, on the democratic mandate: ratification and unanimity establish that the political branches agreed, and agreement among the political branches is precisely the circumstance in which judicial review of an amendment matters, because the interest being protected is not that of any political party but of an institution that cannot speak in a legislature. The basic structure doctrine exists for amendments that command majorities. An amendment passed by a divided Parliament and struck down would teach nothing about the doctrine’s function.

Why does the executive’s role in appointments matter constitutionally?

Because the Union and the States are the largest litigants before the higher judiciary, in service, tax, land, criminal and constitutional matters. The primacy argument holds that a litigant with a blocking voice in selecting judges creates a structural conflict, and that the incentive operates whether or not it is ever used in a particular appointment.

The criticisms of the collegium, stated precisely, and the responses

Criticism of the collegium is often made at a level of generality that makes it impossible to answer, so it is worth stating the criticisms in the specific forms in which they are made by named critics, because the Memorandum of Procedure heads map onto them almost exactly. The first is the absence of published criteria. No instrument states what qualifies a candidate beyond the constitutional eligibility conditions of citizenship and a period of practice or judicial service, and no published standard governs how seniority, merit, diversity of region and of professional background, integrity and judgment writing are to be weighed against one another. The second is the absence of a record of reasons. For most of the collegium’s life nothing was published at all, and a candidate who was passed over, a government that disagreed and a public that asked why had no document to examine. The third is the absence of any mechanism for considering complaints. Material adverse to a candidate reached the collegium through intelligence reports and informal channels, and a person against whom an allegation was made had no defined route to answer it, while a person with a genuine complaint had no defined route to make it. The fourth is the perception of a narrow field of consideration, expressed in the charge that elevation depends on proximity to the institution, on having practised in a particular court, on family connection with the judiciary, or on visibility to a small number of senior judges, and that advocates of ability outside those circles, and judicial officers in districts remote from the High Court’s seat, are considered late or not at all. Versions of that charge have been made by Bar associations, by the Law Commission, by serving and retired judges including the dissenting judge in this case, and by ministers speaking for the Government.

The boundary of that criticism is itself a live constitutional question, because criticism of the judiciary in India is conducted in the shadow of a contempt jurisdiction that reaches scandalising the court, and the line between institutional criticism of an appointments system and contempt is one the courts have had to draw repeatedly, most prominently in the proceedings that followed public statements by a senior advocate about the appointments process; the statutory framework within which that line is drawn is the subject of the article on the Contempt of Courts Act 1971. The significance for this article is narrower: a system that cannot be criticised in detail because its workings are not public, and whose critics risk proceedings if they speculate, is a system insulated from the ordinary mechanisms by which Indian institutions are corrected.

The responses to those criticisms, in the forms in which the collegium’s defenders make them, are these. The collegium has published its resolutions since a resolution of 3 October 2017, by which the collegium then in office resolved that its decisions, indicating the reasons, would be placed on the website of the Supreme Court when recommendations were sent to the Government of India, covering initial elevation to a High Court, confirmation of additional judges, elevation to a Chief Justice’s office, transfers and elevation to the Supreme Court. Reasons in those published resolutions have varied in depth, and later practice has not always matched the terms of the 2017 resolution, but the change was real and it was made by the collegium itself rather than imposed on it. The alternative on offer in 2014 was not more transparent in any demonstrated respect: the NJAC Act did not require publication of reasons, did not require advertisement of vacancies and left criteria to regulations that were never made, so the comparison is between a system that publishes some reasons and a system that promised a structure within which reasons might one day have been required. Confidentiality in appointments is not an Indian eccentricity; every comparable system protects the reputations of candidates who are considered and not chosen, and a process in which every adverse input is published would deter candidates of standing from allowing their names to go forward and would convert a selection into a public contest. And the narrow field charge, defenders say, is partly a charge about the profession rather than the process: the pool from which High Court judges are drawn is the senior Bar of each court and the district judiciary, and any body selecting from that pool, however constituted, will reproduce its characteristics unless it is given an express mandate and the staff to search beyond it, which the Commission was not given either.

The criticisms of the NJAC design, stated precisely

Symmetry of treatment requires the same precision about the commission’s defects, and they are distinct from the general objection to executive participation. The first was the undefined eminent person. A constitutional category carrying a blocking vote was left without qualification, experience, disqualification or a removal procedure stated in the amendment, and the Act did not repair the omission. The second was the absence of criteria in the constitutional text. Article 124B required the Commission to ensure that a person recommended is of ability and integrity, and said nothing more; the zone of consideration, the weight of seniority, the treatment of diversity and the assessment of integrity were all delegated. The third was the veto in the form already examined, which required no reasons and admitted of no resolution. The fourth was the transfer power. The Commission was to recommend transfers of Chief Justices and judges between High Courts, a power with a punitive history in India, and it was to do so through the same two member block, so that a transfer could be prevented by two members or, on the same arithmetic, a transfer the judicial members opposed could not be recommended either, but the initiation of transfer proposals inside such a body raised questions the instruments did not answer. The fifth was the position of the High Courts within the scheme. For High Court appointments the Act required the Commission to elicit the views of the Governor and the Chief Minister and to seek nominations from the Chief Justice of the High Court concerned, who was to consult his two senior most colleagues, so the State executive held an input at two levels while the High Court collegium, which had held the initiating role, was reduced to a consultee of a body in Delhi. Critics in the States treated that as a centralising feature independent of the primacy question.

A sixth criticism is the one least often made and may be the most telling about the design’s completeness. The Commission had no secretariat provided by the instruments, no staff, no budget head and no research capacity of its own. It was to depend on the Ministry of Law and Justice for its functioning, which meant that the body created to distance appointments from the executive would have been administered by the executive’s department. Defenders replied that administrative support is not decisional influence, and that every commission in India is serviced by a ministry. The reply is accurate and incomplete in equal measure, because the complaint was never that a ministry would dictate outcomes but that a body of six part time members, meeting on papers prepared by a government department, without an independent capacity to generate or test information about candidates, would in practice deliberate on material assembled by one of its own interested constituencies.

Four positions on one question

The table below is the artifact this article exists to provide. It sets the four arrangements side by side on the six questions that decide any appointments system. Read across the last column and the article’s argument appears without commentary: the position after the verdict is the position created in 1993 and 1998, with a memorandum revision directed and not completed.

Question	Position before 1993	Position after 1993 and 1998	Position under the Ninety-ninth Amendment	Position after the 2015 verdict
Who initiates a recommendation	The executive, after consulting the Chief Justice and other judges	The Chief Justice, formed collectively with senior colleagues	The Commission, on a reference of vacancies by the Central Government	The Chief Justice, formed collectively with senior colleagues
Who has primacy	The executive; consultation did not mean concurrence	The judiciary; a reiterated recommendation was to be acted on	No member group; any two members could block a recommendation	The judiciary; a reiterated recommendation is to be acted on
What role the executive has	Final word among the functionaries consulted	Inputs, objections and one return for reconsideration	One seat of six, held by the Law Minister, plus views of Governors and Chief Ministers	Inputs, objections and one return for reconsideration
What role any lay member has	None	None	Two eminent persons with a full vote and a share in the blocking power	None
Whether there is a written procedure	A Memorandum of Procedure framed by the executive	A Memorandum of Procedure continued from the earlier practice	The Act of 2014 and regulations the Commission was to make	The earlier Memorandum of Procedure, with a revision directed in December 2015 and not finalised
What the transparency requirements are	None published	None published at first; resolutions published after a collegium resolution in October 2017	No publication duty stated in either instrument	Resolutions published under the October 2017 collegium resolution, with reasons of varying depth

The row that carries the argument is the fifth. In three of the four columns a written procedure exists or was to exist. In the fourth column, the one that describes the arrangement in force, the written procedure is an instrument drafted for an earlier state of the law and the revision that was to bring eligibility, transparency, a secretariat and complaints into it has not been completed. Every other row in the final column duplicates the second column. The verdict changed nothing about the operating rules of appointments except to restore them, and the one change the Court ordered in the same proceeding is the change that did not happen.

Did the NJAC ever appoint a judge?

No. The amendment and the Act were in force from 13 April 2015 until the judgment of 16 October 2015, and the Commission made no recommendation that was acted on. No eminent person participated in selecting a judge and the blocking rule was never exercised, so claims about its working concern a design that never operated.

The Memorandum of Procedure: the reform that was directed and not completed

Immediately after delivering the verdict, the same Constitution Bench listed the matter for further hearing on improving the working of the collegium system, received suggestions from the Bar, from interveners and from the Government, and on 16 December 2015 passed an order in the same proceeding dealing with the Memorandum of Procedure. The order recorded that the Government of India may finalise the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India, who would take a decision based on the unanimous view of the collegium comprising the four senior most judges of the Supreme Court. It identified the heads under which the supplementing was to be considered, and those heads have become the standard statement of what reform of the collegium was to consist in: eligibility criteria, indicating matters such as a minimum age for the guidance of the collegiums at both levels; transparency in the appointments process; the setting up of a secretariat for each High Court and for the Supreme Court, with its functions and responsibilities prescribed; and an appropriate mechanism and procedure for dealing with complaints against anyone being considered for appointment as a judge.

That order is the most important document in the appointments controversy after the judgment itself, and it is the one least mentioned in public discussion of the subject. Its importance is threefold. It is an acknowledgment by the Court, in an operative order rather than in argument, that the system it had just revived required improvement on four named grounds, each of which corresponds to a criticism that had been made of the collegium in the litigation it had just decided. It places the responsibility for producing the revised instrument on the Government in consultation with the collegium, which means on both institutions jointly, so that the failure to produce it is a joint failure and cannot be assigned to one side without misdescribing the order. And it is uncompleted. A revised Memorandum of Procedure was exchanged in draft between the Government and the collegium in the years that followed, with disagreement recorded in public reporting over clauses concerning the grounds on which the Government might return a recommendation, including a ground expressed in terms of national security and public interest, and over the constitution and control of the secretariat. No finalised revised memorandum has been placed in the public domain as the governing instrument, and appointments continue to be made under the earlier memorandum framed after the Third Judges case, supplemented by collegium resolutions and by practice.

Stating that position requires care about dates, and the article states it in the form the record supports. The direction was given on 16 December 2015. Drafts passed between the two institutions during 2016 and 2017. The collegium published its transparency resolution in October 2017. Public statements by holders of office on both sides in later years continued to refer to the memorandum as under discussion or as awaiting finalisation. The finding of this article is the narrow one that the brief directs: the revised memorandum contemplated by the order of 16 December 2015 has not been finalised, the four heads it identified have not been given effect in a single governing instrument, and the process by which judges are appointed is therefore governed by an instrument that predates the verdict, by resolutions adopted unilaterally by the collegium, and by conventions that neither institution has codified. A reform directed by a Constitution Bench as the companion to a judgment striking down a constitutional amendment has remained incomplete for a decade, and that incompleteness is not a detail of administration. It is the answer to the question the amendment was passed to address, supplied by the institution that rejected the amendment, and not delivered.

There is a series dimension to this that the reader of this series will recognise. In the nuclear field, a liability statute was enacted and its regulator was left outside the statute that was to give it independent authority. In pensions, a regulator worked for a decade on executive resolution before its Act arrived. In arbitration, a council was created by amendment and never established, leaving a reform announced and not built. Those are instances of a diagnosed problem left unremedied by an unfinished instrument. The appointments case is the constitutional instance of the same pattern and the most consequential of them, because the unfinished instrument here is the one that was to supply the transparency whose absence was the principal public argument for the amendment the Court struck down.

The friction since the verdict, described structurally

Accounts of the years after 2015 tend to be written as a contest between personalities. Described structurally, without attributing motive to any office holder, the friction has four recurring features, each of which is a consequence of the architecture rather than of the individuals operating it.

The first is the reiterated recommendation that is not notified. Under the Second and Third Judges cases, a recommendation reiterated by the collegium after reconsideration is to be acted on, and the warrant of appointment issues from the President. In practice, names have been reiterated and then remained without a warrant for extended periods, and some reiterated names have been withdrawn or have ceased to be available because the candidate reached retirement age in a High Court or took other office. Because the governing memorandum sets no time limit for the issue of a warrant, an unacted recommendation is not a breach of any written rule; it is a gap in the instrument, which is why it recurs.

The second is segregation within a batch. The Government has on a number of occasions appointed some of the persons recommended together while not appointing others from the same resolution, so that a single collegium recommendation produces appointments at different times or, for some names, no appointment. The collegium has objected in published resolutions to the practice of segregating names, on the ground that it disturbs seniority among those appointed to the same court, since seniority runs from the date of appointment and a delayed warrant can place a candidate below colleagues who were recommended later. Seniority in a High Court determines the order of elevation to the Supreme Court and of appointment as Chief Justice, so a delay measured in months can alter a career measured in decades.

The third is the public statement. Holders of office on both sides have made their positions public rather than confining them to the file. Vice-President Jagdeep Dhankhar, as Chairman of the Rajya Sabha in December 2022, criticised the striking down of an amendment passed by Parliament and ratified by State legislatures, and repeated the criticism on later occasions. Kiren Rijiju, as Union Minister of Law and Justice, described the collegium system in public statements in 2022 and 2023 as opaque and as alien to the Constitution, and conveyed the Government’s view to the Chief Justice of India by letter in January 2023 suggesting the inclusion of a government nominee in the process for shortlisting. Chief Justices and serving judges have replied in public speeches defending primacy as a basic feature and rejecting the suggestion that the collegium is unaccountable. Each of those interventions is on the record and attributed. What they establish structurally is that a process with no forum of its own for resolving disagreement will be argued about in forums that have no power to resolve it.

The fourth is vacancy, which is the ground on which the argument is most often conducted and the figure most often quoted without a source. The Ministry of Law and Justice, in an answer given in the Rajya Sabha on 1 August 2024, placed the position at 25 July 2024 as a sanctioned strength of 1,114 judges in the High Courts, with 755 judges in position and 359 posts vacant, and the Supreme Court at its full strength of 34. Vacancy figures move with retirements and appointments and should be quoted only with the source and the date attached, as here. What the figure establishes, whichever month is chosen, is that roughly a third of the sanctioned strength of the High Courts has stood vacant through the entire period in which the two institutions have disagreed about the procedure for filling those posts. Neither side can present that as a vindication.

What did the December 2015 order direct?

It directed that the Government of India finalise the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India, on the unanimous view of the collegium, under four heads: eligibility criteria, transparency, a secretariat for each High Court and the Supreme Court, and a mechanism for complaints against candidates.

What the tribunal cases show about the same fault line

The appointments dispute is the largest instance of a recurring constitutional pattern in which the judiciary and the executive contest the composition of the bodies that decide, and the tribunal line of authority is the closest parallel and the most instructive. In a series of decisions on the tribunal statutes, from L. Chandra Kumar v Union of India in 1997 through the Madras Bar Association decisions to the judgment on the Tribunals Reforms Act, the Court struck down arrangements in which the executive held a dominant place in the selection committees for tribunal members, prescribed qualifications that diluted the judicial character of the bodies, or fixed tenures short enough to make members dependent on the government that appointed them. The reasoning is recognisably the same as in the NJAC case: where a body performs an adjudicatory function, the executive’s share in choosing its members is a question about the independence of adjudication and not merely about administrative convenience. The tribunal cases also show the pattern’s other half, because several of the directions in those judgments were followed by fresh legislation reproducing substantially similar provisions, which were challenged again, so that the same fault line has been litigated in cycles for more than two decades; that history is set out in the article on the Tribunals Reforms Act 2021.

The parallel sharpens rather than settles the appointments argument, and both sides draw on it. Supporters of primacy point out that the Court has applied the same principle to bodies far below the constitutional courts, and that it would be incoherent to protect the independence of a tribunal member’s selection while allowing a blocking executive voice in the selection of a Supreme Court judge. Supporters of the commission reply that the tribunal cases concerned statutory bodies whose members lack the tenure, salary protection and removal safeguards of constitutional judges, and that a principle fashioned for insecure adjudicators was transferred to the most secure judges in the country without the difference being argued. Both readings are available on the authorities. What the parallel does establish beyond dispute is that the NJAC verdict is not an aberration in the Court’s jurisprudence but an application, at the highest level, of a doctrine the Court has applied consistently wherever appointment, tenure and executive interest meet.

The reform options that remain open, and what each would not do

Four options recur in the literature and in the public statements of the institutions, and the article sets them out with the limit of each, because an option described without its limit is a slogan.

Completion of the Memorandum of Procedure is the option the Court itself chose. It requires no legislation and no amendment, it is within the competence of the two institutions acting together, and it could deliver three of the four things critics ask for: published eligibility criteria, a secretariat with a staff and a records function, and a complaints mechanism with a defined route for the candidate to answer. It would not change who decides. It would not give the executive or any lay person a voice. And its authority would remain that of an executive instrument framed in consultation, revisable by the same process that made it, which is why a decade of negotiation over its clauses has been a negotiation about power conducted in the vocabulary of drafting.

A statutory secretariat and a statutory framework for the process, short of an amendment, is the second option. Parliament could legislate for the administrative support of the appointments process, for the maintenance of a database of the higher judiciary and of candidates, for the publication of resolutions and for timelines within which a recommendation is to be processed, without touching the question of who recommends. Such a statute would have to be framed so as not to trench on the primacy the judgments protect, and its provisions would be open to challenge on exactly that ground, but the space for it exists and has been identified by commentators across the argument. It would resolve the administrative criticisms and none of the constitutional ones.

Published criteria and a widened zone of consideration, adopted by the collegium on its own authority, is the third option and the one most entirely within the judiciary’s gift. The collegium could publish the considerations it applies, could invite expressions of interest or nominations from a wider field than the senior Bar of each court and the district judiciary, and could record and publish reasons of a consistent depth. Nothing in the judgments prevents any of that, and the October 2017 transparency resolution was a step of exactly this kind. Its limit is that it is revocable by the same authority that grants it, and that a self imposed discipline does not answer the accountability objection, which is an objection about who holds the power rather than about how openly it is exercised.

A fresh constitutional amendment framed to preserve judicial primacy is the fourth option and the only one that could restore a commission. On the majority’s reasoning, such an amendment would need a composition in which the judicial members hold a decisive voice that no combination of non judicial members could defeat, which in practice means either a judicial majority, or a voting rule under which a recommendation supported by the judicial members cannot be blocked by non judicial members, or a structure in which the non judicial members advise and place their views on record without a vote. Whether any of those designs would be acceptable to the political branches, which passed the 2014 design because it gave the executive a real share, is a political question the Court cannot answer. Whether a bench would uphold such an amendment is a legal question that would be decided by a bench whose members were appointed under the system the amendment replaced, which is a difficulty about the appearance of the adjudication that no drafting can remove.

Records, reporting and the protection of sources

A dispute conducted substantially through public statements, leaked drafts and unattributed accounts of what passed inside a collegium meeting places an unusual weight on records, and on the ability of those who report the dispute to keep the sources of those records safe. Draft memoranda, returned drafts and correspondence between the institutions have entered public discussion through journalism rather than through official publication, and the participants in that reporting, on every side of the argument, have an interest in the confidentiality of the channel by which a document reached a newsroom. The practice of protecting a source by controlling where the underlying files sit and who can open them is the subject of a guide to how journalists use a document vault to protect sources, and it is relevant here for a reason specific to this subject. Where the official record of a process is thin, the unofficial record becomes the evidence, and the argument about appointments has been shaped repeatedly by documents that no institution published. That is a further cost of an uncodified process, and it is borne by the public’s understanding rather than by either institution.

The verdict the record earns

Both cases have been stated at full strength above, and the stance charter of this series does not permit the article to leave them unadjudicated where the record supports a conclusion. Three conclusions are supported, and they are of different kinds.

On the narrow legal question that decided the case, the majority’s reasoning is the stronger, and it is stronger at the point where the argument is most concrete. The two member blocking rule, applied to a body in which the Law Minister was a member and the eminent persons were chosen by a committee on which the Prime Minister sat, produced combinations in which the united judicial membership could be defeated by members who included no judge. Defending that rule required defending the proposition that primacy means a voice plus a mutual veto, and that proposition does not survive the arithmetic. The dissent’s answer, that two judges could equally block an executive favourite, establishes protection against imposition and does not establish primacy, and the majority was entitled to treat the difference as decisive. A design carrying a judicial majority, or a rule confining the blocking power to the judicial members, would have presented a much harder case, and the judgment should be read as a judgment on the design enacted rather than as a judgment that no commission can ever be constitutional.

On the institutional question, the case for the commission retains force that the verdict did not answer. Appointment of judges by judges, without published criteria, without a secretariat, without a complaints mechanism and without a voice for any person outside the judiciary, is an arrangement no other constitutional democracy in the comparison set maintains, and the breadth of the political agreement behind the amendment was a fact about Indian democratic opinion that the judgment could set aside only by treating the question as one of basic structure. Treating it as one was orthodox. It was also a choice with a cost, which is that the electorate’s representatives were told that an institutional preference on which they had achieved near unanimity was outside their competence. That cost is the standing price of the basic structure doctrine, and it is paid in every case in which the doctrine is used; the NJAC case is the instance in which the price is most visible, because the feature protected was the Court’s own position in the process that composes the Court.

On the question that matters most for the future, neither institution has the better of the record. The Court struck down the commission and, in the same proceeding, prescribed the remedy for the defects it acknowledged in the system it restored. It named the four heads of that remedy with precision. A decade later the revised memorandum has not been finalised, the secretariat has not been established as the order contemplated, no eligibility criteria have been published in a governing instrument, and no complaints mechanism exists. Responsibility for that rests with both institutions jointly, because the order made the instrument a joint product, and each has had reason to find particular clauses in the other’s drafts unacceptable. But the asymmetry in the position should be named. The Government lost the amendment and retained every other instrument of policy available to it. The Court won the amendment case and acquired, by its own order, an obligation of a kind it does not usually owe to anyone, to see a reform completed. The criticisms of the collegium that the amendment was passed to answer were restated by the Court itself as the agenda for that reform. They remain unaddressed by the remedy the Court prescribed, and until the memorandum is finalised or the Court says plainly that it will not be, the collegium verdict stands as a judgment that settled who may not appoint India’s judges and left unbuilt the instrument that was to show how they should be appointed.

The reform attempts that preceded 2014

The commission of 2014 was the fourth serious attempt to change the appointments process by law, and its predecessors explain both its design and the objections it met. The first attempt came in 1990, when the Government introduced the Constitution (Sixty-seventh Amendment) Bill proposing a National Judicial Commission, at a time when the First Judges case still governed and executive primacy was the law. That bill lapsed without enactment. Its significance is that the idea of a commission did not originate as a device against the collegium, since the collegium did not yet exist. It originated as a device for structuring a process in which the executive held the final word and in which consultation was unstructured and undocumented, and it was supported then by many who later defended the collegium against its successor.

The second attempt was deliberative rather than legislative. The National Commission to Review the Working of the Constitution, appointed in 2000 and chaired by Justice M. N. Venkatachaliah, a former Chief Justice of India, reported in 2002 and recommended a National Judicial Commission for appointments to the higher judiciary, with a composition that included the Chief Justice of India, judges of the Supreme Court, the Union Minister for Law and Justice and an eminent person. The presence of a former Chief Justice’s name on that recommendation mattered in the later debate, because it allowed supporters of the 2014 amendment to say that a mixed commission was not an executive invention but a proposal that had come from within the judicial tradition itself. Critics replied that the Venkatachaliah Commission’s recommendation was framed against the collegium’s early working and assumed safeguards in the detail that the 2014 instruments did not reproduce.

The third attempt was the Constitution (Ninety-eighth Amendment) Bill of 2003, introduced by a government of a different political complexion from the one that enacted the Ninety-ninth Amendment, proposing a National Judicial Commission chaired by the Chief Justice of India with other judges, the Law Minister and an eminent person nominated by the President. It too was not enacted. Between that bill and 2014, the Law Commission of India addressed the appointments process in its reporting on judicial reform, and the Second Administrative Reforms Commission and parliamentary committees recorded the same criticisms of opacity and delay. By the time the One Hundred and Twenty-first Amendment Bill was introduced in August 2014, the proposition that the collegium required replacement had been stated in official documents across two decades and under governments of both principal political formations.

That history cuts in two directions and the article records both. For the commission’s supporters it establishes that the amendment was the culmination of a long, bipartisan, officially documented reform effort, and that striking it down disposed of a generation of institutional deliberation in a single judgment. For the collegium’s defenders it establishes something different: that each earlier proposal was framed before the full working of the collegium had been tested, that none of them was enacted even by the governments that proposed them, and that the failure of Parliament across twenty-four years to pass any of them suggests the political branches themselves were never as committed to the design as the unanimity of August 2014 implied. Both readings are honest. What the history does not support is the claim, made on both sides at different times, that the NJAC arrived from nowhere or that it was opposed from nowhere.

How a collegium appointment proceeds, step by step

Because the verdict restored the collegium, the operating process a reader needs is the collegium’s, and it is set out here as the Memorandum of Procedure and the judgments describe it, in the order in which a name travels. A vacancy in a High Court is anticipated from the retirement dates of sitting judges, and the process is meant to begin months before the vacancy occurs. The Chief Justice of the High Court, in consultation with the two senior most judges of that court, forms a recommendation from among advocates of that court’s Bar and judicial officers of the State service, taking the views of other judges and of persons with knowledge of the candidates. The recommendation travels to the Chief Minister and the Governor of the State, whose views are recorded, and then to the Union Minister for Law and Justice. The Ministry obtains the inputs of the intelligence agencies, compiles the file and places it before the Chief Justice of India. The Supreme Court collegium, the Chief Justice of India with the two senior most judges for this stage of the consideration, examines the recommendation with the views of judges of the Supreme Court conversant with the affairs of the High Court concerned, and either approves, returns or declines the name. An approved name goes to the Government, which may return it once with its objections; if the collegium reiterates the name, the warrant of appointment is issued by the President.

For the Supreme Court, the process begins inside the Court. The Chief Justice of India consults the four senior most judges, together with the senior most judge drawn from the High Court from which a candidate comes, and the recommendation travels to the Government through the Law Ministry in the same way, subject to the same single return and the same obligation on reiteration. Transfers of Chief Justices and judges between High Courts originate in the Supreme Court collegium under Article 222 as construed by the judgments, with the views of the Chief Justices of both courts and of judges conversant with them.

Reading that sequence against the NJAC design shows what the amendment would actually have changed, which is less than either side’s rhetoric suggested and more than a change of letterhead. The initiating role for High Court appointments would have moved from the High Court collegium to a central body acting on nominations. The State executive’s input, which in the collegium process is recorded on the file, would have been formalised as views elicited by the Commission. The intelligence input, which enters the collegium process through the Ministry’s file, would have entered through the same channel. The decisive change was confined to the last stage: the identity of the body that finally recommends, and the voting rule by which it does so. Everything upstream, the pool, the files, the inputs, the absence of advertisement and of published criteria, would have remained as it was unless the Commission chose by regulation to alter it. That is a reason for treating claims that the NJAC would have transformed the culture of appointments, and claims that it would have delivered the judiciary to the executive, with equal reserve.

The majority opinions, taken one by one

The four judges in the majority did not write a single opinion, and the differences among them matter for anyone who wants to know which propositions command the Court and which are the reasoning of one judge. Justice Khehar’s opinion is the leading one and the longest. It works through the history of the appointment articles, the three Judges cases and the Constituent Assembly material, and it holds that the primacy of the judiciary in appointments is an integral part of the independence of the judiciary and therefore of the basic structure. Its treatment of the eminent persons is the most detailed in the case: the opinion examines the absence of any qualification for the office, the composition of the nominating committee and the possibility that the two eminent persons, acting with the Law Minister, could defeat the judicial members, and it concludes that the scheme left the judiciary’s voice without the determinative character the Constitution required. It also addresses the argument from other democracies and answers it on the ground that the Indian executive’s position as the dominant litigant, and the Indian experience of the 1970s, make the comparison an unsafe guide.

Justice Lokur’s opinion is the most concerned with process and with the practical working of appointments. It examines the material on how the Commission would have functioned, the lack of clarity in the Act about the role of the eminent persons and about the criteria for selection, and the questions of privacy and confidentiality that arise when information about candidates circulates in a body of that composition. It is also the opinion that engages most directly with the argument that the collegium needed improvement, a theme the same judge carried into the subsequent hearings on the Memorandum of Procedure. Justice Kurian Joseph’s opinion is the shortest of the majority and the most openly regretful about the collegium’s condition. It accepts the constitutional conclusion that the amendment could not stand, and it records, in terms that have been quoted as often as the dissent, that the collegium system needed improvement and that the judiciary had to accept the criticism directed at it. Justice Goel’s opinion approaches the question through the structure of the appointment articles and the Constituent Assembly’s rejection of proposals that would have given any single functionary an overriding voice, and through the proposition that a provision which permits the executive and non judicial members to override the judiciary in appointments trenches on a basic feature.

Taken together, the four opinions establish a holding and leave three questions open, and identifying the open questions is the useful work. The holding is that the Ninety-ninth Amendment and the Act violated the basic structure because they did not preserve judicial primacy. The first open question is the precise content of primacy beyond the negative established by the case: the opinions agree that a united judicial membership must not be defeasible by non judicial members, and they do not prescribe the composition of a body that would satisfy the requirement. The second is whether a commission in which the judiciary held a majority, or in which non judicial members had no vote, would survive, which no opinion decides because no such scheme was before the Court. The third is the status of the criteria, secretariat and complaints questions, which all four majority opinions treat as matters for the Memorandum of Procedure rather than as constitutional requirements, and which therefore remain matters of negotiation rather than of law. A reader who treats the judgment as having settled the design of a lawful appointments body overreads it. It settled the design of an unlawful one.

The arguments in court, and what the hearing revealed

The hearing extended over many days in the summer of 2015 and was conducted at a level of public attention unusual even for a Constitution Bench, with the Attorney General appearing for the Union, senior counsel for the petitioner associations of advocates on record and for the Bar, and a large number of interveners including former judges and law officers. Two features of the hearing deserve record because they shaped the judgment’s reception. The first is that the Union’s case rested heavily on the proposition that the Second Judges case had itself been wrongly decided, or at least that its reading of consultation as concurrence was an interpretation that a constitutional amendment could displace. That argument required the bench to treat the primacy doctrine as an interpretation open to constituent correction rather than as a basic feature, and the majority’s rejection of it is the doctrinal centre of the case: once primacy was located in the basic structure, no amendment could remove it, and the only remaining question was whether the scheme preserved it. The second is that the petitioners’ case did not depend on defending the collegium’s record. Counsel for the petitioners accepted that the system required improvement and directed the argument to the proposition that a defective system protected by the Constitution could not be replaced by a system that damaged the Constitution. That concession, made openly, is part of why the bench moved directly from the verdict to improvement hearings, and part of why the December 2015 order reads as the second half of a single judgment.

The hearing also produced a preliminary skirmish that is worth recording for the light it throws on the institutions. Before the merits were reached, objections were taken to the composition of the bench, on the ground that judges who were members of the collegium and whose own appointments had been made under it should not hear a challenge to the system that replaced it. The objections were not accepted. The episode is usually reported as a curiosity. Structurally it states the difficulty that recurs in every proposal for a fresh amendment: the lawfulness of any replacement for the collegium will be determined by judges appointed under the collegium, applying a doctrine those judges’ predecessors created, in a case in which the institution deciding is the institution whose power is in issue. That is not an argument that the doctrine is wrong. It is an argument that the doctrine carries an appearance problem which its defenders should acknowledge rather than dismiss, because public confidence in the outcome of the NJAC case has been affected by it ever since.

The comparative argument examined on its own terms

Because the comparative claim does so much work for the commission’s supporters, it deserves examination rather than citation. The claim is that appointment of judges by judges is unknown in comparable democracies. Stated at that breadth it is broadly accurate about the higher judiciary of the countries usually named, and it is incomplete in three respects that the majority’s reasoning exploited. In the United Kingdom, the Judicial Appointments Commission recommends for courts below the Supreme Court, and appointments to the United Kingdom Supreme Court are made by selection commissions convened for each vacancy with a composition that includes the President of the Court and a senior judge from each of the three jurisdictions alongside lay members, so judicial participation in the selection of the highest court is substantial even where judges are a minority of the recommending body for lower courts. In South Africa, the Judicial Service Commission interviews candidates in public and its proceedings are televised, a transparency practice far beyond anything proposed in the NJAC Act, and the President appoints from its recommendations or, for some offices, from a list it supplies. In the United States, the political character of federal appointments is undisputed and is accompanied by a public confirmation process, by life tenure and by a constitutional culture in which the Senate’s refusal to consider a nomination is a recognised political act; the comparison therefore imports a process whose openness is the very feature the Indian design lacked.

The conclusion that follows is not that comparison is useless. It is that the countries in the comparison set pair executive or lay participation with one of two compensating features that the NJAC design did not contain: either a public process, with interviews, published criteria and stated reasons, or a judicial element strong enough that the executive cannot determine the outcome. The 2014 design paired participation with confidentiality and with a blocking rule. That pairing, rather than participation itself, is what a comparative argument for a future Indian commission would have to repair, and it is a repair that could be made by drafting. Nothing in the verdict prevents a future Parliament from proposing a commission with published criteria, a judicial majority and a public record of reasons. Everything in the verdict prevents it from proposing the one that was proposed in 2014.

The review, the aftermath in office and the position a decade on

The Union sought a review of the judgment, and the review petition was dismissed, leaving the verdict as the settled statement of the law. No fresh amendment on appointments has been introduced in Parliament since 2015. The subject has instead been conducted through the channels described in the friction section of this article: through the exchange of drafts of the Memorandum of Procedure, through published collegium resolutions and published objections to the segregation of names, through statements by the Vice-President in his capacity as Chairman of the Rajya Sabha, through ministerial statements and a ministerial letter proposing a government presence in the shortlisting process, and through speeches by Chief Justices and judges in reply. A private member’s initiative and parliamentary questions have kept the subject on the record without producing a bill from the Government.

Two features of that decade are worth isolating because they are the evidence on which any assessment of the verdict’s consequences must rest. The first is that the collegium did change some of its practices without any instrument compelling it to. It published resolutions with reasons from October 2017. It published, for a period, information about candidates and about the material considered. It recorded objections to segregation and to delay in its own resolutions, making the executive’s part in the friction a matter of public record rather than of report. Those changes were partial and have not been uniform across successive collegiums, and the practice of publishing reasons has varied in depth, but they demonstrate that the system’s opacity was a practice and not a necessity, which is a conclusion that assists neither side’s stronger claims. The second feature is that the vacancy position did not resolve. On the figures given by the Ministry of Law and Justice in the Rajya Sabha on 1 August 2024 for the position at 25 July 2024, 359 of 1,114 sanctioned High Court posts stood vacant, and the corresponding proportion had been of the same order through the preceding years, in a period when both institutions were publicly committed to filling the posts. A process whose two custodians disagree about its rules for a decade will produce that result regardless of which of them is right about the Constitution, and it is the result by which the public, which experiences the judiciary as delay, judges the argument.

What the Constituent Assembly designed, and why both sides cite it

Both sides in the appointments argument claim the Constituent Assembly, and an accurate account has to give the Assembly’s actual decisions rather than the versions quoted in debate. The Drafting Committee’s proposals for the appointment of judges were debated in May 1949. The Assembly settled on appointment by the President after consultation with the Chief Justice of India and such other judges and, for the High Courts, the Chief Justice of the High Court concerned. Proposals that would have required the concurrence of the Chief Justice were moved and not accepted, and Dr B. R. Ambedkar, as chairman of the Drafting Committee, explained the reasoning in terms that both sides have used ever since. To give the Chief Justice a veto, he argued, would be to place in one individual a power the Assembly was unwilling to confer on the President or the executive, and the Chief Justice was, in his phrase, a man with all the failings and sentiments of other men. To leave the appointment to the executive without consultation would be equally dangerous. Consultation was the middle course the Assembly chose deliberately, with knowledge of both alternatives.

The collegium’s defenders read that record as a rejection of individual veto rather than of judicial primacy, and point out that the Assembly was designing against the background of a Governor General’s executive and could not have foreseen the institutional form a collective judicial opinion would take. On this reading, the Second Judges case did not contradict the Assembly but adapted its settlement: the opinion that carries primacy is not the Chief Justice’s personal opinion, which is what the Assembly refused to make decisive, but a collective opinion formed with the senior most judges, which is a different thing and one the Assembly never considered. The commission’s supporters read the same record as a considered refusal to make the judiciary decisive in its own appointments, and argue that an interpretation which produces the result the Assembly rejected, by the route of calling an individual opinion collective, is an interpretation that has travelled a long way from the text it construes. Each side’s reading is available on the record, and the article does not pretend otherwise. What the record does not contain is any consideration by the Assembly of a commission, of lay membership, or of a blocking rule, because none was proposed. Appeals to the founders on those questions are appeals to silence.

One further point from the framing period matters because it is the foundation on which the basic structure argument in the case was built. The Assembly also declined to write into the Constitution any express guarantee of the judiciary’s independence in the appointment process beyond the provisions it did make: security of tenure until a fixed age, removal only on an address by Parliament on grounds of proved misbehaviour or incapacity, salaries charged on the Consolidated Fund and not votable, and a bar on varying conditions of service to a judge’s disadvantage after appointment. The primacy doctrine holds that independence is still a structural feature that those provisions serve and that an appointments process capable of defeating the judicial voice would undermine the whole set. That is a structural inference, of the kind constitutional courts draw from a document’s arrangement of institutions, and its strength depends on accepting that the Constitution’s silences can carry as much weight as its provisions. In the appointments field, the entire law rests on accepting exactly that.

Primacy in practice: the return, the reiteration and the transfer

Primacy is an abstraction until it is stated as a set of working rules, and three of them govern the daily conduct of the process. The first is the single return. When the Government receives a recommendation it is not bound to accept at once; it may return the name to the collegium with its objections and with the material on which they rest. That return is not a rejection, and the distinction is the practical content of the executive’s role. A government that discloses adverse material it holds, including intelligence material, performs a function the collegium cannot perform for itself, and there are recorded instances of names not being pursued after such material was shared. The second rule is the obligation on reiteration. If the collegium, having considered the objections, recommends the name again, the appointment is to be made. Reiteration is therefore the act by which primacy is exercised, and a collegium that reiterates is asserting that it has weighed the executive’s material and is unpersuaded. The third rule concerns transfers. Article 222 empowers the President, after consultation with the Chief Justice of India, to transfer a judge from one High Court to another, and the judgments have placed the effective initiative with the collegium, with the result that a transfer the collegium does not propose does not take place and a transfer it proposes is difficult for the executive to resist.

Each rule has generated its own friction, and the friction is instructive about where the system’s weaknesses actually sit. The single return has no time limit attached to it, so a government that does not return a name and does not appoint has found a position the rules do not describe, and the collegium’s remedy is a resolution recording its disapproval. Reiteration has no time limit either, so a reiterated name can wait. Transfers have been the subject of published collegium resolutions recording that a proposed transfer was reconsidered or withdrawn after representations, and of criticism that a transfer can operate as a sanction without the safeguards of a disciplinary process, a criticism made of a power the judiciary itself controls. None of those three weaknesses is a consequence of executive participation in appointments. All three are consequences of a process governed by an instrument that fixes no timelines and supplies no remedy for inaction. That is the strongest practical argument for completing the Memorandum of Procedure rather than continuing to argue about the Commission, because the memorandum is the one instrument in the field that could impose timelines on both institutions, and it is the instrument both institutions have left unfinished. It is also the reason the article’s central finding is about an unfinished document rather than about a struck down amendment. The amendment is a closed question of law. The memorandum is an open question of institutional will, and it is the question on which the quality of appointments in India will actually be decided.

Eligibility, ability and integrity: the words both instruments left undefined

Article 124B required the Commission to ensure that the person recommended is of ability and integrity. Those two words are the entire substantive standard the constitutional text supplied, and the space around them is where the argument about criteria lives. Eligibility, by contrast, was fixed and uncontroversial. A judge of the Supreme Court must be a citizen of India and must have been a judge of a High Court for at least five years, or an advocate of a High Court for at least ten years, or be in the opinion of the President a distinguished jurist. A judge of a High Court must be a citizen and must have held a judicial office in India for ten years or been an advocate of a High Court for ten years. Those conditions in Articles 124(3) and 217(2) were not altered in substance by the amendment, and no party argued that they were inadequate. The argument was about everything the eligibility conditions do not measure: the quality of a candidate’s judging or advocacy, the candidate’s temperament, the candidate’s administrative capacity, the diversity of the bench in region, in gender, in professional origin and in social background, and the weight to be given to seniority when seniority and those other measures point to different names.

Under the collegium, that assessment is made on a file consisting of the candidate’s judgments or reported cases, the opinions of judges who have seen the candidate work, the views of the State government and the Governor, and the intelligence inputs the Ministry collects. Under the Commission, the same file would have been assembled, because the Act required nominations and views from the same sources, and the assessment would have been made by six people instead of five or three. Neither instrument specified how the assessment was to be recorded, what would count as an adverse finding on integrity, or whether a candidate was entitled to know that an adverse finding had been made and to answer it. The complaints head in the December 2015 order was directed to exactly that gap, and it is the head on which the least progress of any kind has been recorded, because a complaints mechanism requires someone to receive complaints, someone to test them and someone to decide what weight they carry, and each of those functions has to be assigned to an institution that the other side of the negotiation does not control.

The integrity question deserves a paragraph of its own because it is where the appointments process meets its hardest practical problem. Material bearing on integrity reaches the process from the intelligence agencies, from the Bar, from litigants and from judges, in forms that range from a documented judgment to an unattributed report. A system that acts on unattributed material without disclosing it exposes a candidate to a veto he cannot answer. A system that discloses all material exposes its sources and deters the supply of information on which it depends. The collegium has been criticised on the first ground and the Commission would have been criticised on both, since its wider membership would have widened the circulation of the same material. No appointments system in the comparison set has solved this problem completely, and the honest conclusion is that the December 2015 order identified it correctly and that the failure to build the mechanism is a failure to construct the one part of the process where construction was most needed and most difficult. That conclusion is independent of the constitutional argument, and it survives whichever view is taken of the verdict.

A note on reading the judgment itself

Students and journalists approaching the case for the first time should be warned about its physical form, because the form explains many of the errors in circulation. The judgment of 16 October 2015 runs to more than a thousand pages in the law reports, in five opinions, and it was followed two months later by the separate order on the Memorandum of Procedure, which is reported apart from the main judgment and is therefore omitted from most summaries. A reader who works from a summary will encounter the holding and the rhetoric and will miss both the December order and the qualifications inside the majority opinions, including the passages in which the majority judges criticise the collegium they were restoring. Three errors recur so regularly that they are worth listing as a reader’s checklist. The judgment was not unanimous, and any account that does not name the dissent has not been checked. The collegium was not created by the Constitution, and any account that attributes it to the constitutional text has confused the construction with the document. And the Court did not hold that a commission is impermissible; it held that this commission, with this composition and this voting rule, damaged a basic feature, and it left the design of a lawful alternative undecided. A reader who holds those three corrections in mind can place almost any public statement on the subject, from whichever side it comes, and can identify the point at which a statement about the case becomes a statement about the speaker’s preference for an outcome the case did not decide.

One sentence in the December 2015 order deserves to be better known than it is, because it allocates the task in a way that later argument has blurred. The Court did not direct the Government to produce a memorandum and submit it for approval, and it did not reserve the drafting to itself. It recorded the Attorney General’s submission that the memorandum had always been prepared by the Government of India in consultation with the President of India and the Chief Justice of India, expressed complete agreement with that procedure, and directed that the existing memorandum be finalised by supplementing it in consultation with the Chief Justice, who would act on the unanimous view of the collegium. Unanimity inside the collegium was thus built into the procedure as a condition, which gave each of its members a voice in the content of the instrument and made the collegium a joint author rather than a consultee. When the instrument stalled, it stalled inside a procedure the Court had designed to require agreement at two levels, between the institutions and within one of them. That design choice is the most plausible explanation for the decade of incompletion, and it is a choice for which the judgment, and not either negotiating party, is responsible.

Frequently Asked Questions

Q: What did the NJAC Act and the 99th Amendment propose?

The 99th Amendment inserted Articles 124A, 124B and 124C, substituted the appointment and transfer provisions in Articles 124, 217 and 222, and made appointment a Presidential act on the recommendation of a six member National Judicial Appointments Commission. The National Judicial Appointments Commission Act, 2014 (Act 40 of 2014) supplied the selection procedure, the reference of vacancies and the reconsideration power, and provided that the Commission shall not recommend a person if any two members do not agree. Both instruments were assented to on 31 December 2014 and commenced on 13 April 2015.

Q: Why did the Supreme Court strike down the NJAC?

Because the majority held that independence of the judiciary is part of the basic structure of the Constitution and that judicial primacy in appointments is an element of that independence, following the Second Judges case of 1993. The Commission’s composition, with the Law Minister and two eminent persons in a body of six where the judges held half the seats, combined with a rule allowing any two members to block a recommendation, meant the judicial members could be defeated by a combination including no judge. The defect lay in the scheme itself and was not curable by reading down, so the amendment and the Act were held void together.

Q: What was the dissent in the NJAC case?

Justice J. Chelameswar, the lone dissenter in a four to one decision, upheld the amendment and the Act. He held that a body in which the judiciary held half the seats and the chair, and in which two judges could block any recommendation, did not subordinate the judiciary to the executive, and that primacy in the sense of an exclusive judicial voice was not the only arrangement consistent with independence. His opinion is remembered chiefly for its indictment of the collegium, whose proceedings he described as opaque and inaccessible to public and history, and for its charge of unwholesome trade-offs within the system.

Q: How did the collegium system come about?

By judgment rather than by text. Articles 124(2) and 217(1) require the President to appoint judges after consultation, and say nothing about a collegium. In S. P. Gupta in 1981, the First Judges case, consultation was held not to mean concurrence and the executive held the final word. In 1993 a nine judge bench in the Second Judges case overruled that position and gave primacy to the opinion of the Chief Justice of India formed with his two senior most colleagues. An advisory opinion in 1998, the Third Judges case, fixed the collegium for Supreme Court appointments at the Chief Justice and the four senior most judges.

Q: What happened to the Memorandum of Procedure?

On 16 December 2015, after striking down the amendment, the same Constitution Bench directed the Government of India to finalise the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India, acting on the unanimous view of the collegium, under four heads: eligibility criteria, transparency, a secretariat for each High Court and the Supreme Court, and a mechanism for complaints against candidates. Drafts were exchanged and clauses disputed, including the grounds on which the Government might return a name. The revised memorandum has not been finalised, and appointments continue under the earlier memorandum and collegium practice.

Q: What are the criticisms of the collegium?

That it publishes no criteria for selection beyond constitutional eligibility, that for most of its life it recorded and published no reasons, that it has no mechanism by which a complaint against a candidate can be made or answered, and that its field of consideration is narrow, favouring those visible to a small number of senior judges and prompting charges of favouritism toward candidates with family or professional proximity to the judiciary. Those charges have been made by the Law Commission, by Bar bodies, by ministers and by Justice Chelameswar in dissent. Defenders answer that resolutions have been published since October 2017 and that confidentiality protects candidates who are considered and not chosen.

Q: What are the criticisms of the NJAC design?

That the eminent persons were given a full vote and a share in the blocking power without any prescribed qualification, experience or disqualification, and were chosen by a committee on which the Prime Minister sat. That the Law Minister, representing the largest litigant before the higher courts, held a seat and a block. That Article 124B stated functions in general terms and left criteria, the zone of consideration and reasons to regulations that were never made. That the transfer power was placed in the same body under the same voting rule. And that the Commission had no secretariat, staff or budget of its own and would have been serviced by the Law Ministry.

Q: What judicial appointment reform options remain open?

Four. Completing the Memorandum of Procedure directed in December 2015, which needs no legislation and could deliver criteria, a secretariat and a complaints mechanism but would not change who decides. A statute providing administrative support, records and timelines for the process without touching who recommends. Published criteria and a widened zone of consideration adopted by the collegium on its own authority, as partly happened with the transparency resolution of October 2017. And a fresh constitutional amendment designed to preserve judicial primacy, with a judicial majority or a voting rule that non judicial members cannot use to defeat a recommendation the judicial members support.

Q: Who were the five judges on the NJAC bench?

The Constitution Bench comprised Justice J. S. Khehar, Justice Madan B. Lokur, Justice Kurian Joseph, Justice Adarsh Kumar Goel and Justice J. Chelameswar. Justice Khehar wrote the leading opinion for the majority of four, and Justices Lokur, Joseph and Goel delivered separate concurring opinions agreeing that the amendment and the Act were void. Justice Chelameswar wrote the only dissent and would have upheld both instruments. Judgment was delivered on 16 October 2015, and the case is reported as Supreme Court Advocates-on-Record Association v Union of India, (2016) 5 SCC 1.

Q: How did the two-member veto in the NJAC Act work?

Section 5 of the National Judicial Appointments Commission Act, 2014, dealing with Supreme Court appointments, and Section 6, dealing with High Court appointments, each provided that the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation. No reasons had to be recorded and no category of member was excluded. The rule was symmetrical, so two judges could block a name favoured by the minister and the eminent persons. It also meant the Law Minister and one eminent person could block a candidate supported by all three judicial members, which the majority treated as the negation of primacy.

Q: What did the First Judges case of 1981 decide?

In S. P. Gupta v Union of India, the Supreme Court considered what consultation means in Articles 124 and 217, where the President appoints judges after consulting the Chief Justice of India and other judges. The majority held that consultation does not mean concurrence. The opinion of the Chief Justice was entitled to great weight but was one opinion among those of the functionaries consulted, and the executive retained the final word, exercisable for cogent reasons. That reading governed appointments for the first four decades of the Republic and is the position described as executive primacy. It was overruled on this point by the nine judge bench in the Second Judges case in 1993.

Q: What did the Second Judges case of 1993 decide?

In Supreme Court Advocates-on-Record Association v Union of India, a bench of nine judges held that consultation in the appointment articles means concurrence in this setting. The opinion of the Chief Justice of India, formed collectively after consulting the two senior most judges of the Supreme Court, carries primacy, the executive may return a recommendation once for reconsideration, and a recommendation reiterated after reconsideration is to be acted on by the President. The reasoning rested on independence of the judiciary as a structural value, and on the experience of executive primacy, including the supersessions of senior judges in 1973 and 1977. The decision overruled the First Judges case and created the collegium in substance.

Q: What did the Third Judges case of 1998 settle?

The advisory opinion in In re Special Reference No. 1 of 1998, given on a reference by the President, settled the composition and working of the collegium that the 1993 judgment had created. For appointments to the Supreme Court the collegium is the Chief Justice of India with the four senior most judges. For High Court appointments the recommendation originates with the Chief Justice of that court and his two senior most colleagues and is considered by the Chief Justice of India with the two senior most judges, taking the views of judges conversant with the affairs of that High Court. The opinion also addressed seniority, divided collegiums and adverse consultee views.

Q: What role did the two eminent persons have in the NJAC?

Under Article 124A they were full members of the six member Commission, nominated by a committee of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or, failing such a Leader, the leader of the single largest opposition party. One was to be nominated from among persons belonging to the Scheduled Castes, the Scheduled Tribes, other backward classes, minorities or women. The term was three years without eligibility for renomination. The amendment prescribed no qualification, experience or disqualification for the office, and the two members together could block any recommendation under the Act’s two member rule.

Q: Did the NJAC ever make an appointment before it was struck down?

No. The Ninety-ninth Amendment and the Act came into force on 13 April 2015 and the judgment striking them down was delivered on 16 October 2015. Challenges filed before commencement had been dismissed as premature, and the Court heard the challenge on merits without staying the Act, so the Commission existed in law for six months. It made no recommendation that was acted on, no eminent person took part in selecting a judge, and the two member blocking rule was never exercised. Every argument about how the Commission would have operated is therefore an argument about a design that never functioned.

Q: What happened to Articles 124A, 124B and 124C after the judgment?

They fell with the amendment that inserted them. The majority held the Constitution (Ninety-ninth Amendment) Act, 2014 unconstitutional and void, which removed Articles 124A, 124B and 124C and the substituted versions of Articles 124, 217 and 222 in one stroke. The consequence the Court stated was that the system of appointment as it existed before the amendment stood revived, meaning the consultation provisions in their original form as construed by the Second and Third Judges cases. The National Judicial Appointments Commission Act, 2014, which depended on the amendment for its authority, was declared void at the same time and has no operative existence.

Q: What is a Memorandum of Procedure in judicial appointments?

It is the written instrument that records how appointments to the higher judiciary are processed: how vacancies are notified, how recommendations originate in a High Court, what material accompanies a name, how the views of the State government and the Union government are taken, how the Supreme Court collegium considers the proposal and how the warrant of appointment issues. It is an executive instrument framed in consultation with the Chief Justice of India rather than a statute or a constitutional provision, and it derives its authority from the practice directed by the Second Judges case. The memorandum in force was framed after the Third Judges case of 1998, and the revision directed in December 2015 has not been finalised.

Q: When did the collegium begin publishing its resolutions?

Following a resolution dated 3 October 2017, taken by the collegium headed by Chief Justice Dipak Misra with Justices Chelameswar, Gogoi, Lokur and Kurian Joseph. The resolution stated that decisions taken by the collegium, indicating the reasons, would be put on the website of the Supreme Court when the recommendations were sent to the Government of India, covering initial elevation to a High Court, confirmation of additional judges, elevation to the office of Chief Justice of a High Court, transfers and elevation to the Supreme Court. Its stated purpose was to ensure transparency while maintaining confidentiality. The depth of reasons in published resolutions has varied, and later practice has not always matched the resolution’s terms.

Q: What did Justice Chelameswar do after the judgment about collegium meetings?

In September 2016 he declined to attend meetings of the collegium and wrote to the Chief Justice of India recording his objection to the manner in which its proceedings were conducted and recorded, while continuing to communicate his views on candidates in writing on the files sent to him. The step was consistent with his dissent of October 2015, in which he had described the collegium’s proceedings as opaque and inaccessible to public and to history. In January 2018 he was also one of the four senior most judges of the Court who addressed a press conference concerning the administration of the Court, an event without precedent in the institution’s history.

Q: What is the difference between consultation and concurrence in the Judges cases?

Consultation, in its ordinary constitutional sense, is the seeking and considering of an opinion that the decision maker may depart from for reasons. Concurrence is agreement: the decision cannot be taken against the opinion. The entire appointments jurisprudence turns on which of the two Articles 124 and 217 require. The First Judges case in 1981 held that the requirement is consultation, leaving the executive with the final word. The Second Judges case in 1993 held that in this setting consultation carries the content of concurrence, so that the collectively formed opinion of the Chief Justice of India has primacy. The Third Judges case in 1998 then specified the collectivity, fixing the numbers of senior judges whose participation makes the opinion a collegium opinion.