24-04-2025
Opinion In defence of the collegium
On April 24, 1973, the Supreme Court of India handed down a judgment that changed the constitutional fabric of the nation. In Kesavananda Bharati v State of Kerala, the SC held that while Parliament has vast powers to amend the Constitution, it cannot alter its 'basic structure.' Among the principles placed beyond legislative reach was the independence of the judiciary.
India's judiciary is caught in a prolonged tug-of-war with the executive over the power to appoint judges. This struggle, revived recently by the controversy involving Justice Yashwant Varma, has led to calls for scrapping the collegium system. But this call misses a crucial point. The collegium may be flawed, but what lies on the other side is not reform, it is executive control. To dismantle the judiciary's autonomy in the name of transparency or efficiency would be to hollow out the very foundation that basic structure sought to protect.
For context, on March 14, 2025, a fire at Justice Varma's official residence led to the discovery of a significant amount of cash. The Supreme Court promptly constituted an in-house committee to investigate the matter. Justice Varma was transferred to the Allahabad High Court, his parent court, and was relieved of judicial responsibilities pending the inquiry. He has denied any wrongdoing, and the investigation continues.
The situation raises legitimate questions, but it must be addressed with nuance. It is a case concerning one judge, not the judiciary as an institution. Yet, the episode has quickly been weaponised to reassert its long-standing critique of the collegium system and to push for greater executive influence in judicial appointments.
The collegium system, developed through the Second Judges' Case (1993) and clarified in the Third Judges' Case (1998), was created precisely to insulate judicial appointments from political pressure. It shifted the power to appoint judges from the executive to a group of 4 senior-most judges led by the Chief Justice of India. The goal was not procedural elegance but constitutional necessity for protecting the judiciary from partisan influence.
The collegium system is not without its shortcomings. Without any doubt, there is opacity, delays, and allegations of internal bias in the present system, but we cannot deny that there is room for reform. But abandoning it in favour of a mechanism that gives the executive a decisive voice in judicial appointments would be to compromise one of the Constitution's core guarantees.
India attempted such a shift in 2014 with the 99th Constitutional Amendment and the creation of the National Judicial Appointments Commission (NJAC). The NJAC proposed a six-member body, including the Chief Justice of India, two senior judges, the Law Minister, and two 'eminent persons' selected by a panel comprising the Prime Minister, the Chief Justice, and the Leader of the Opposition. The idea of inclusion quickly gave way to deeper concerns. The presence of the Law Minister and two political nominees introduced a channel for direct executive interference. The veto mechanism — allowing any two members to block an appointment — meant that even a minority, if politically aligned, could stymie consensus. Most troubling was the provision allowing Parliament to amend NJAC regulations by simple majority, leaving judicial appointments at the mercy of transient political majorities.
In 2015, the Supreme Court struck down the NJAC, holding that it violated the basic structure of the Constitution. Judicial independence, the SC said, could not be subject to the political tides of the day. Since then, the government has used the judgment to claim that the judiciary is unaccountable and self-serving. Yet the real concern lies not with the structure of the collegium, but with how the executive has responded to it.
In recent years, the central government has often withheld action on names recommended or reiterated by the collegium. This isn't merely bureaucratic delay; it raises constitutional concern. Once a recommendation is reiterated by the collegium, the executive is bound to act. Instead, prolonged silence and selective approvals have created uncertainty, strained the judicial pipeline, and indirectly signalled pressure. This slow-walk approach appears less about efficiency and more about leverage.
As of early 2025, several collegium recommendations remain pending, some for over months. The resulting vacancies clog the system and fuel the narrative that the judiciary is ineffective, thereby justifying further interference. The solution, however, is not to hand the keys to the judiciary's independence over to the executive. Rather than scrapping the collegium, the judiciary must lead reforms that preserve independence while enhancing transparency and accountability. The Justice Varma case is a reminder that the judiciary must be proactive in policing itself. But these moments must not be seized upon to push political agendas that would compromise the very structure of the judiciary.
The basic structure doctrine is not about abstract principles; it was a shield against constitutional subversion. The framers entrusted the judiciary with the role of sentinel, not subordinate. That role is now under pressure. Judicial independence is not ornamental. It is functional. It ensures that courts can rule without fear or favour. It is the safeguard that keeps constitutional majorities from becoming constitutional monarchs. It is worth remembering what was at stake then and what is at stake now. The collegium is not perfect, but its imperfections must not become a pretext for executive capture. Reform, yes, but not at the cost of autonomy.
