Judicial appointments

From Justice Definitions Project

Judicial Appointments in India

Judicial appointments in India mean the process of selecting judges for the High Courts and the Supreme Court. Right now, this happens through the collegium system, where the Chief Justice of India and a few senior judges decide who should become a judge. This system has been criticized for being too secretive, with no clear rules or public explanation for how names are chosen. Many people feel it needs to be more transparent and accountable so that public trust in the judiciary remains strong.

There have been efforts to reform this system, like the National Judicial Appointments Commission (NJAC), which was meant to involve the government and civil society in the appointment process. But the Supreme Court struck it down, saying it threatened judicial independence. Another idea is the All India Judicial Services (AIJS), a national-level exam to appoint lower court judges, but many states oppose it because it might take away their powers. Overall, judicial appointments remain a big issue, with a constant push and pull between independence, transparency, and fairness.[1]

Legal Provisions related to Appointment of Judges

Article 124 – Supreme Court Judges' Appointment

"Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts as the President may deem necessary..."[2]

- The President appoints Supreme Court judges after consulting judges, especially the Chief Justice of India. Over time, this "consultation" has come to mean binding recommendation by the Collegium.

Judicial Precedent

S.P. Gupta v. Union of India (1981) – First Judges Case: Held that the President was not bound by the Chief Justice's advice; gave primacy to the executive.[3]

Supreme Court Advocates-on-Record Association v. Union of India (1993) – Second Judges Case: Overruled the First Judges Case; held that the Chief Justice’s recommendation (with consultation of senior judges) had primacy, giving rise to the Collegium System.[4]

In re: Presidential Reference (1998) – Third Judges Case: Clarified that the Chief Justice must consult a collegium of four senior-most judges, and a majority view would prevail.[5]

Article 217 – Appointment of High Court Judges

"Every Judge of a High Court shall be appointed by the President... after consultation with the Chief Justice of India, the Governor of the State, and... the Chief Justice of the High Court."[6]

Judges of High Courts are appointed by the President in consultation with key constitutional authorities, particularly the Chief Justice of India.

Article 222 – Transfer of High Court Judges

"The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court."[7]

- Judges can be transferred from one High Court to another by the President, but only after consulting the Chief Justice of India.

Judicial Precedent

Union of India v. Sankalchand Sheth (1977) : Upheld the power of the President to transfer judges under Article 222 but emphasized that such transfer must not be arbitrary and must follow proper consultation with the Chief Justice.[8]

Article 224 – Appointment of Additional and Acting Judges

"The President may appoint duly qualified persons to be additional Judges for a temporary period to clear arrears or meet increased workload."[9]

- When High Courts are overburdened, the President can appoint temporary additional or acting judges to help. 

Collegium System

The Collegium System is the method currently used in India for the appointment and transfer of judges in the higher judiciary, namely the Supreme Court and High Courts. What sets it apart is that it is not found anywhere in the text of the Constitution or in any law made by Parliament. Instead, it was developed by the Supreme Court itself through a series of landmark judgments to protect the judiciary’s independence from political or executive interference. In this system, the Chief Justice of India (CJI), along with a group of senior-most judges, recommends names for appointments and transfers. These recommendations are sent to the President of India, and although technically the President makes the appointments, the recommendations of the Collegium are binding in practice.[10]
Relevant Article: Article 124(2) provides that Supreme Court judges are appointed by the President after consultation with such judges of the Supreme Court and High Courts as the President may deem necessary. The term “consultation” later became the subject of constitutional interpretation.
Article 217(1) deals with High Court appointments and requires the President to consult the CJI, the Governor of the state, and the Chief Justice of the High Court concerned. These provisions gave the initial structure, but not the final word.

How Did It Come Into Existence?

The Collegium System didn’t come into existence through one decision it evolved over time through three major cases that are now famously referred to as the Three Judges Cases.[11]

The First Judges Case, S.P. Gupta v. Union of India (1981), held that the word “consultation” in Articles 124 and 217 did not mean concurrence, and that the executive had the final say in appointing judges. The Court in this case gave primacy to the central government and laid down that the CJI’s opinion was not binding. This marked a phase where judicial independence was not fully protected.

But this was overturned in the Second Judges Case, Supreme Court Advocates-on-Record Association v. Union of India (1993), where the Supreme Court ruled that the Chief Justice’s recommendation, made after consulting senior judges, should have primacy in judicial appointments. The Court interpreted “consultation” to effectively mean “concurrence,” and thus created the Collegium System to insulate appointments from executive influence.

The Third Judges Case, Re Presidential Reference (1998), came when the President of India sought the Court’s opinion under Article 143(1) (which allows the President to seek advice from the Supreme Court on important constitutional issues). Here, the Court clarified that the CJI must consult a plurality of judges specifically the four senior-most judges of the Supreme Court. Thus, the Collegium became a collective body, not just the CJI’s personal opinion.[12]

The NJAC Attempt and Judicial Response

In 2014, Parliament passed the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act, 2014 with the goal of replacing the Collegium with a more transparent and inclusive process. The NJAC proposed a six-member body that included the CJI, two senior judges, the Union Law Minister, and two eminent persons. However, this raised concerns over potential executive interference.

In the NJAC Case, Supreme Court Advocates-on-Record Association v. Union of India (2015), the Supreme Court struck down both the 99th Amendment and the NJAC Act, holding that they violated the basic structure of the Constitution, particularly the principle of judicial independence. The Court said that allowing political figures like the Law Minister to have a say in appointments threatened the autonomy of the judiciary.[13]

Basic Structure Doctrine, first laid down in Kesavananda Bharati v. State of Kerala (1973), holds that certain features of the Constitution like judicial independence and separation of powers cannot be amended by Parliament.

Article 143(1) was relevant again here, as it earlier allowed the President to seek the Court’s opinion during the evolution of the Collegium.

Why is It Controversial?

Although the Collegium was created to safeguard judicial independence, it has faced increasing criticism for lacking transparency, accountability, and diversity.[14] There are no publicly known criteria for how judges are selected, and decisions are often made behind closed doors with little explanation. This has led to accusations of nepotism, favouritism, and even internal lobbying within the judiciary itself.[15]

In the NJAC judgment itself, the Court acknowledged these flaws. While striking down NJAC, it admitted that the Collegium System had problems and promised to introduce reforms to improve its functioning. However, no substantial structural reform has taken place since.[16]

Reports by the Second Administrative Reforms Commission and the 214th Report of the Law Commission of India have also criticized the Collegium for being opaque and called for a more participatory and transparent system.

Why Does It Still Exist?

Despite its shortcomings, the Collegium System remains in place primarily because the alternative giving the executive a stronger role in appointments was seen by the Supreme Court as a bigger threat to democracy. The fear is that if the government gets more power in choosing judges, the judiciary may lose its impartiality and independence, especially in cases involving political sensitivity.

The Doctrine of Separation of Powers, although not expressly mentioned in the Constitution, is deeply embedded in its structure and has been upheld by the Court in multiple cases, including Indira Nehru Gandhi v. Raj Narain and Kesavananda Bharati. The Directive Principle under Article 50 also supports the need to separate the judiciary from executive control in the administration of justice.

Until Parliament and the judiciary can arrive at a constitutionally valid and widely acceptable alternative, the Collegium System continues to be the operational mechanism for judicial appointments and transfers in India.[17]

Supreme Court Judges

The judges of the Supreme Court, including the Chief Justice of India, are appointed by the President.[18]However, under the ‘collegium’ system developed in Supreme Court jurisprudence during the 1980s and 1990s,[19] the Supreme Court heavily influences the appointments of judges.

The Chief Justice of India is the highest judicial position in India and is appointed by the President of India. The Chief Justice presides over the Supreme Court and is responsible for the overall administration of the Indian judiciary. Article 124(1) of the Indian Constitution provides for the establishment of the office of Chief Justice. Other Supreme Court judges are also appointed by the President of India.[20]

Qualifications for Appointment[21]

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

Appointment Procedure

The Department of Justice under the Ministry of Law and Justice hosts the memorandum of procedure of appointment of Supreme Court Judges in its official website. It provides the procedure for the appointment of Chief Justice of India, Supreme Court judges, Acting Chief Justice, Ad hoc judges and also provides the procedure required in case of attendance of retired judges in Supreme Court.[22]


collegium resolution - https://www.sci.gov.in/collegium-resolutions/

https://vidhilegalpolicy.in/blog/the-supreme-courts-collegium-resolutions-an-empty-formality/

https://www.scobserver.in/journal/discord-in-the-collegium-provides-rare-insight-on-member-deliberations/

High Court Judges

High court judges are appointed by the President of India,[23] and they preside over cases in the high courts. The high courts are the second highest level of courts in India and are in each state of the country.

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

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

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

Qualifications for Appointment[24]

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

Appointment Procedure

The Department of Justice under the Ministry of Law and Justice hosts the memorandum of procedure of appointment of High Court Judges in its official website. It provides the procedure for the appointment of Chief Justice of the High Court, High Court judges, Acting chief justice of the high court, Ad hoc judges, Acting judges, Permanent judges and also provides the procedure required incase of attendance of retired judges in High Court.[25]

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

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

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

The appointment ratio in procedure is pursuant to the resolution passed in the conference of Chief Justices in 1999 and the Supreme Court order in Kuldip Singh v. Union of India[26].

District Judges

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

Qualification for Appointment

  • The candidate must be a citizen of India.
  • The candidate must have a law degree from a recognized university.
  • The candidate must have at least seven years of experience as an advocate.[27]
  • The candidate must have a good character and reputation.
  • Appointment Procedure
  • In its judgment in the All India Judges Association case,[28] the Supreme Court in interpreting the provisions of Article 233 outlined three ways of appointing District Judges:

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

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

(c) Through time scale promotion for about 65%  of the total vacancies. Usually, there is no requirement of a minimum number of years of service. But, some states[29] have prescribed a minimum number of years of service in the previous office.

However, the percentage of vacancies which is dedicated to each source or mode of appointment differs by the State government rules. There is no uniform or rigid percentage distribution incase of appointments. For example, Andhra Pradesh appoints based on the percentage ratio of 25:25:50 from direct recruitment, department competitive exam and transfer recruitment respectively incase of vacancies.[30] Other Indian states like Assam, Manipur and Madhya Pradesh also have this breakup of vacancy at 50%, 25% and 25% respectively.[31]

  • For Senior Civil Judges and Civil Judges (Junior Division) there are no minimum specified requirements in the Constitution. This gives states considerable leeway to decide on their own. Generally, recruitment to the cadre of Senior Civil Judges occurs through promotion from the Civil Judges (Junior Division) cadre on the basis of merit-cum-seniority, whereas recruitment to the post of Civil Judges (Junior Division) happens via direct recruitment through a competitive examination. There is however wide divergence in practice, and in procedures for appointment across states, especially when it comes to the role of State Public Service Commissions vis-a-vis the High Courts as the conducting authority. In All India Judges Association v. Union of India[32], the Supreme Court held that candidates seeking to become a Civil Judge (Junior Division) must have practised as an advocate or law clerk for at least three years. The decision overruled the Court’s own Judgement from 2002.

Additional District Judges

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

Appointment Procedure

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

Lower Subordinate Judges

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

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

Appointment Procedure

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

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

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

Article 234[33] provides for the recruitment of persons other than district judges to the judicial service, stipulating that the appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him on that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such States.

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

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

The Supreme Court in Malik Mazhar case[34], has devised a process and time frame to be followed for the filling up of vacancies in subordinate judiciary which stipulates that the process for recruitment of judges in the subordinate courts would commence on 31st March of a calendar year and end by 31st October of the same year. The Supreme Court has permitted State Governments / High Courts for variations in the time schedule in case of any difficulty based on the peculiar geographical and climatic conditions in the State or other relevant conditions.


International Experience

The processes of judicial appointments in other democracies present a mixed picture. In the US, most apex judicial appointments involve a combination of presidential nomination and Senate approval. In Canada, appointments are made following a federal cabinet decision and a screening process conducted by a judicial advisory committee. In Australia, appointments are made by the Governor-General-in-Council. In the United Kingdom, a selection commission—comprising the president and deputy [resident of the Supreme Court—makes a recommendation, which is then submitted to the monarch for formal approval.

So far judicial independence and the executive’s role in the appointments have seldom clashed in most democracies. Although, instances of a US president regretting his choice, when the judgments of a selected judge did not align with presidential expectations, do exist.[35]

https://prsindia.org/theprsblog/rethinking-judicial-appointments-collegium-vs-commission?page=16&per-page=1

References

  1. ↑ Harsh Gagrani, ‘Appointment of the Judges in the Indian Judiciary (Article 3)’ (NLIU Law Review, November 2021) https://nliulawreview.nliu.ac.in/wp-content/uploads/2021/11/Appointment-of-the-judges-in-Indian-Judiciary-Article-3.pdf
  2. ↑ https://indiankanoon.org/doc/1164880/
  3. ↑ https://indiankanoon.org/doc/112850760/
  4. ↑ https://indiankanoon.org/doc/753224/
  5. ↑ https://www.scobserver.in/wp-content/uploads/2024/11/Third-judges-case.pdf
  6. ↑ https://www.constitutionofindia.net/articles/article-217-appointment-and-conditions-of-the-office-of-a-judge-of-a-high-court/
  7. ↑ https://www.constitutionofindia.net/articles/article-222-transfer-of-a-judge-from-one-high-court-to-another/
  8. ↑ https://indiankanoon.org/doc/4572688/
  9. ↑ https://indiankanoon.org/doc/570782/
  10. ↑ Chandra, Aparna, et al. “From Executive Appointment to the Collegium System: The Impact on Diversity in the Indian Supreme Court.” Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin America, vol. 51, no. 3, 2018, pp. 273–89. JSTOR, https://www.jstor.org/stable/26630269. Accessed 10 July 2025.
  11. ↑ TEWARI, MANISH, and REKHA SAXENA. “The Supreme Court of India: The Rise of Judicial Power and the Protection of Federalism.” Courts in Federal Countries: Federalists or Unitarists?, edited by NICHOLAS ARONEY and JOHN KINCAID, University of Toronto Press, 2017, pp. 223–55. JSTOR, http://www.jstor.org/stable/10.3138/j.ctt1whm97c.12. Accessed 10 July 2025.
  12. ↑ V Venkatesan, ‘How the Emergency Birthed the Collegium System’ (29 June 2025) Supreme Court Observer https://www.scobserver.in/journal/how-the-emergency-birthed-the-collegium-system/ accessed 10 July 2025.
  13. ↑ JAISING, INDIRA. “National Judicial Appointments Commission: A Critique.” Economic and Political Weekly, vol. 49, no. 35, 2014, pp. 16–19. JSTOR, http://www.jstor.org/stable/24480485. Accessed 10 July 2025.
  14. ↑ Jehosh Paul, ‘The Supreme Court’s Collegium Resolutions: An Empty Formality?’ (15 February 2022) Vidhi Centre for Legal Policy https://vidhilegalpolicy.in/blog/the-supreme-courts-collegium-resolutions-an-empty-formality/ accessed 10 July 2025.
  15. ↑ BHUSHAN, PRASHANT. “Scuttling Inconvenient Judicial Appointments.” Economic and Political Weekly, vol. 49, no. 28, 2014, pp. 12–15. JSTOR, http://www.jstor.org/stable/24480292. Accessed 10 July 2025.
  16. ↑ Joyston D’Souza, ‘Discord in the Collegium Provides Rare Insight on Member Deliberations’ (14 October 2022) Supreme Court Observer https://www.scobserver.in/journal/discord-in-the-collegium-provides-rare-insight-on-member-deliberations/ accessed 10 July 2025.
  17. ↑ KUMAR, C. RAJ. “Future of Collegium System: Transforming Judicial Appointments for Transparency.” Economic and Political Weekly, vol. 50, no. 48, 2015, pp. 31–34. JSTOR, http://www.jstor.org/stable/44002895. Accessed 10 July 2025.
  18. ↑ The Constitution of India, art. 124. available at: https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf
  19. ↑ S P Gupta Vs. Union of India And Ors, AIR 1982 SC 149 (First Judges Case); Supreme Court Advocates on Record Association Vs. Union of India (1993) 4 SCC 441 (Second Judges Case); In Re Special Reference Case, AIR 1999 SC 1 (Third Judges Case).
  20. ↑ The Constitution of India, art. 124(2). available at: https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf
  21. ↑ The Constitution of India,art. 124(3). available at: https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf
  22. ↑ Department of Justice, Government of India, memorandum of procedure of appointment of Supreme Court Judges, (11/08/2021), available at: https://doj.gov.in/memorandum-of-procedure-of-appointment-of-supreme-court-judges/
  23. ↑ The Constitution of India, art. 217. available at: https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf
  24. ↑ The Constitution of India, art. 217(2). available at: https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf
  25. ↑ Department of Justice, Government of India, memorandum of procedure of appointment of Supreme Court Judges, (11/08/2021), available at: https://doj.gov.in/memorandum-of-procedure-of-appointment-of-high-court-judges/
  26. ↑ Kuldip Singh v. Union of India, AIR 2002 SC 2041.
  27. ↑ The Constitution of India, art. 233(2). available at: https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf
  28. ↑ All India Judges Association vs. Union of India & Ors (2010) 15 SCC 170.
  29. ↑ Minimum number of years requirement: In Andhra Pradesh, the High Court of Andhra Pradesh has prescribed a minimum of 10 years of service as a sessions judge for time scale promotion to the post of district judge. Whereas, in Bihar, Gujarat, Kerala, Madhya Pradesh, Maharashtra, Odisha the High Courts have prescribed a minimum of 8 years of service as a sessions judge for time scale promotion to the post of district judge.
  30. ↑ The Andhra Pradesh State Judicial Service Rules, 2007.
  31. ↑ Rao, Prof. Srikrisha Deva and Tripathy, Rangin and A, Eluckiaa, "Performance Evaluation and Promotion Schemes of Judicial Officers in India: A Comparative Report" (2018).
  32. ↑ All India Judges Association v Union of India, 2025 INSC 735.
  33. ↑ The Constitution of India. available at: https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf
  34. ↑ Malik Mazhar v. U.P. Public Service Commission, (2008) 17 SCC 703.
  35. ↑ https://thewire.in/law/rethinking-judicial-appointments-in-india
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