Constitutional Debate on Judicial Appointments – Explained

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• A private member’s Bill has been introduced in Parliament seeking constitutional amendments to promote diversity in judicial appointments and establish regional benches of the Supreme Court.

Constitutional Provisions on Judicial Appointments

• The Constitution of India lays down the framework for appointing judges to the higher judiciary.
  • Article 124 provides that judges of the Supreme Court are appointed by the President after consultation with the Chief Justice of India (CJI).
  • Article 217 governs the appointment of High Court judges, requiring consultation with the CJI, the Governor of the State, and the Chief Justice of the concerned High Court.
  • Article 130 states that the seat of the Supreme Court shall be in Delhi or any other place decided by the CJI with the approval of the President.
• Initially, judicial appointments were made by the executive after consultation with the judiciary. 
• However, over time, concerns regarding judicial independence led to a shift in the balance of power.

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Evolution of the Collegium System

• The collegium system emerged through judicial interpretation rather than constitutional amendment.
  • In the First Judges Case (1981), the Supreme Court upheld executive primacy in judicial appointments.
  • In the Second Judges Case (1993), the Court reversed this position, establishing the collegium system and giving primacy to the judiciary.
  • The Third Judges Case (1998) clarified the composition and functioning of the collegium.
• The collegium for Supreme Court appointments consists of the CJI and four senior-most judges. 
• For High Courts, it includes the CJI and two senior-most judges. The recommendations are sent to the Central government, which may return them once for reconsideration. If reiterated, the government is bound to appoint.
• While the collegium system strengthened judicial independence, it has faced criticism for a lack of transparency, accountability, and allegations of nepotism.

The NJAC and Judicial Independence

• In 2014, Parliament enacted the 99th Constitutional Amendment to establish the National Judicial Appointments Commission (NJAC). 
• The NJAC included the CJI, two senior judges, the Union Law Minister, and two eminent persons.
• However, in 2015, the Supreme Court struck down the NJAC as unconstitutional, holding that it violated the basic structure doctrine by compromising judicial independence. As a result, the collegium system continues to operate.

Diversity in the Judiciary

• The current debate centres on the limited representation of marginalised groups in higher judicial appointments. 
• Data cited in the discussion shows that between 2018 and 2024, only about 20% of appointees to the higher judiciary belonged to the Scheduled Castes (SC), the Scheduled Tribes (ST), and Other Backwards Classes (OBC). 
• Representation of women remains below 15%, and religious minorities below 5%.
• The private member Bill seeks to constitutionally mandate due representation for SCs, STs, OBCs, women, and religious minorities in proportion to their population. 
• This marks a significant shift from the purely merit-based framework toward a more socially representative model.
• The issue touches upon two constitutional values:
  • Judicial Independence
  • Substantive Equality and Social Justice
• A more diverse judiciary is often argued to enhance public confidence, improve sensitivity in adjudication, and reflect India’s pluralistic society.

Proposal for Regional Benches of the Supreme Court

• Another key proposal in the Bill is the establishment of regional benches of the Supreme Court in New Delhi, Kolkata, Mumbai, and Chennai.
• Currently, the Supreme Court sits only in Delhi. This creates accessibility challenges for litigants from distant States. Additionally, more than 90,000 cases are pending before the Court as of January 2026.
• The proposed regional benches would exercise full jurisdiction except for constitutional matters, which would remain with the Constitution Bench in Delhi.
• The idea of regional benches has been recommended in the past by the Law Commission and Parliamentary committees. 
• It can be implemented under Article 130 without requiring a constitutional amendment, as the Chief Justice can designate alternative seats with executive approval.

Way Forward

• The responsibility for ensuring diversity primarily lies with the judiciary through reforms in the collegium process. 
• Greater transparency, objective criteria, and data-based selection can strengthen legitimacy.
• A long-term reform could involve revisiting a broad-based judicial appointments commission that balances independence with accountability. 
• International examples such as the U.K. and South Africa show that inclusion of members from the executive, legislature, and civil society can coexist with judicial independence.
• On regional benches, a phased approach may be considered, starting with one bench and expanding based on experience. This would improve access to justice and reduce pendency.

Source: TH