Judges in Waiting: The Stalemate Over Appointments Deepens

By Dr Swati Jindal Garg

The long-running power struggle between India’s judiciary and executive has sharpened once again, with the Supreme Court pulling up the centre for inordinate delays in appointing judges recommended by the Collegium. In stern observations, the Court said the central government must act without delay and clear all pending recommendations, emphasizing that the judicial machinery is grinding under the weight of pending cases and unfilled vacancies.

In hearings held earlier this month, the apex court pointedly reminded the government: “The Collegium is not a search committee whose recommendations can be stalled.” Yet, the numbers speak volumes. The Allahabad High Court is operating with only 79 judges against a sanctioned strength of 160. The Bombay High Court has 66 judges for 94 seats. In Calcutta and Delhi High Courts, the deficits are similarly alarming. Altogether, over seven lakh criminal appeals are pending in High Courts across India.

ORIGINS OF THE COLLEGIUM: BORN OUT OF CONFLICT

The conflict is not new. In fact, the very creation of the Collegium system in 1993 was rooted in the judiciary’s attempt to assert independence after decades of executive control. The current system emerged through the Second Judges Case, which interpreted Article 124(2) of the Constitution to give the chief justice of India and a panel of senior judges the primacy in recommending appointments and transfers. It held that while the executive may seek reconsideration, it is bound to accept reiterated names. This model—though not enshrined in the Constitution—was further affirmed in the 1998 Third Judges Case. Yet it has never been free from scrutiny or criticism.

EXECUTIVE PUSHBACK AND PUBLIC CRITIQUE

Successive law ministers have publicly questioned the Collegium, calling it opaque, elitist, and unaccountable. Statements like “the centre cannot blindly accept recommendations” and that “appointment of judges is the job of the government if we follow the spirit of the Constitution” underline the centre’s consistent discomfort with judicial primacy.

Meanwhile, the judiciary defends the system as a working, if imperfect, safeguard for judicial independence. Former Chief Justice of India DY Chandrachud acknowledged its flaws, but insisted that judges were “faithful soldiers of the Constitution”, working within the framework handed down to them.

A BROKEN SYSTEM OR A BRUISED DEMOCRACY?

Legal experts are increasingly vocal about the deadlock. Delays in appointments—especially of names reiterated by the Collegium—are seen by some as contempt in all but name. “The court is being overly gentle with the government,” said one constitutional scholar, noting that when the executive wants to act, it acts fast.

At the same time, calls for scrapping the Collegium entirely are met with scepticism. The failure of the National Judicial Appointments Commission (NJAC)—struck down by the Supreme Court in 2015 for undermining judicial independence—has made a return to executive-dominated processes unlikely.

A NEW WAY FORWARD?

Rather than reverting to older models, many argue that reform must now focus on how judges are selected, not who selects them. A structured, transparent and timely process rooted in clear criteria is essential. Some even suggest reviving the NJAC’s idea of including an “eminent person” in the appointments panel—an innovation that brought the citizen into the judicial process.

Because justice, after all, must be seen to be done. And in a democracy, it is we the people who must see it. 

—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

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