Judiciary Vs Legislature

The Collegium System in Indian Judiciary: Rise of Judicial Supremacy and the Debate on Institutional Balance

📌 Introduction

India's democracy is built on a foundational principle: separation of powers among the Legislature, Executive, and Judiciary. However, in recent years, the Collegium System—a mechanism exclusive to the Indian judiciary—has become the center of intense debate. Critics argue that the Supreme Court, via this system, has amassed excessive power, leading to judicial overreach, encroachment on legislative and executive domains, and even attempts to "direct" the President of India.

But what exactly is the Collegium System? How did it evolve, and why is it controversial? This blog explores these questions in depth.

🧭 What Is the Collegium System?

The Collegium System is a judicial mechanism for the appointment and transfer of judges to the higher judiciary in India—namely, the Supreme Court and High Courts.

It is not mentioned anywhere in the Constitution of India, nor is it a law passed by Parliament. Instead, it is the result of a series of Supreme Court judgments (known as the Three Judges Cases).

🏛️ Composition of the Collegium:

Supreme Court Collegium: Consists of the Chief Justice of India (CJI) + 4 senior-most judges of the SC.
High Court Collegium: Chief Justice of a High Court + 2 senior-most judges of that HC.

📜 Evolution of the Collegium System: Three Judges Cases

1️⃣ First Judges Case (1981)

Held that the President had primacy in judicial appointments.
Judges were appointed by the President in consultation with the CJI.

2️⃣ Second Judges Case (1993)

Overturned the First Judges Case.
Introduced the Collegium System, giving primacy to the judiciary in appointments.
Now, executive’s role is minimal.

3️⃣ Third Judges Case (1998)

Expanded the collegium from 2 senior-most judges to 4 senior-most judges + CJI.

Result: Appointments to SC/HC are now entirely in the hands of the judiciary.

⚖️ Why Is the Collegium Controversial?

1. Lack of Transparency

The system works without any formal rules or procedures.
No clear criteria for selection.
No public scrutiny or accountability.

2. No Representation or Diversity

Appointments have been criticized for nepotism or favoritism (often called “uncle judge syndrome”).
Underrepresentation of women, SC/ST, minorities.

3. No Executive or Legislative Role

Parliament has no say in appointments.
The President of India is constitutionally bound to accept the Collegium's recommendation unless sent back once for reconsideration.

4. Struck Down the NJAC

In 2015, the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act, which was unanimously passed by Parliament and ratified by 20 states.
NJAC aimed to include judiciary, executive, and civil society in appointments.
SC termed NJAC as a threat to judicial independence.

🧨 Judicial Supremacy & Overreach: Real Concerns?

Critics argue that judicial independence has now turned into judicial supremacy, leading to:

✅ Good:

Strong protection of fundamental rights
Check on executive overreach
Balanced federalism

❌ Problematic:

Judiciary interferes in legislative and executive matters
Instructions to the President or Governors
Delays in judge appointments
Selective activism

🔥 Recent Examples:

Judicial Orders to President (or perceived as such):
- While the SC cannot directly order the President, in some recent judgments, indirect instructions or strongly worded recommendations to the President or Governors have blurred that boundary.
- Example: Delay in assent to bills—SC expressing concern and indirectly pressuring the President/Governor.
Waqf Act and Other Legislative Reviews:
- Courts questioning and putting stays on Acts passed by elected legislatures.
Intervention in Executive Policy:
- SC often directs police reforms, environment policy, COVID management, etc.

🤝 Separation of Powers: Where Is the Balance?

Constitutionally:

Legislature makes laws
Executive implements laws
Judiciary interprets laws

But under Collegium dominance:

Judiciary now “controls” appointments
Rejects even consensus reforms like NJAC
Appears to pressure constitutional posts like the President or Governors via public judgments

Is this unconstitutional?

Not technically—but raises democratic accountability questions.

🌐 International Comparison

Country	Appointment System	Role of Judiciary
USA	President nominates, Senate confirms	Judicial independence, but democratic checks exist
UK	Independent JAC recommends, Lord Chancellor involved	Transparent process
Canada	Executive appoints, with input from judiciary	Political accountability

India is the only major democracy where judges appoint themselves without oversight.

🔍 Suggestions & Way Forward

Reintroduce a Transparent NJAC-like Body:
- Include judiciary, executive, civil society
- Criteria-based, publicly visible selection
Digitize and Document the Collegium Process:
- Make recommendations public with reasons
Respect Institutional Boundaries:
- Judiciary must resist the temptation of acting as an alternative executive or legislature.
Strengthen President and Governor Independence:
- Constitutional posts must not be swayed by institutional pressure from any side.

🧾 Conclusion

The Collegium System, while designed to protect judicial independence, has evolved into an unaccountable and opaque structure. The Supreme Court’s growing authority, including perceived directives to the President, sparks genuine concerns about judicial overreach and the erosion of separation of powers.

A healthy democracy requires all institutions—judiciary, legislature, and executive—to work independently but cooperatively, maintaining mutual respect and constitutional limits.

This blog is relevant for anyone researching topics like the Collegium System in India, the Supreme Court's role in judicial appointments, and the controversy surrounding NJAC vs Collegium. It explores key constitutional themes such as judicial independence, separation of powers, and judicial overreach, making it valuable for readers interested in judicial reforms, Indian democracy, and the functioning of the Indian Constitution. Through comparisons with systems in the USA, UK, and Canada, the article also appeals to those studying global judicial systems and how judges are appointed in democracies. It offers insights into Supreme Court activism, accountability in governance, and the evolution of the judiciary in India.

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