The Watchmaker’s Paradox: When Guardians Choose Their Heirs

Author: Aman Laxminarayan Goyal, Madhusudan Law University

Situated within the labyrinth of Indian democratic machinery as a master watchmaker, the judiciary operates to balance and adjust the powers that compete with each other. How, then, does it do this? The Collegium System has come under criticism as the rules of the game by which these watchmakers are chosen are decided by them, for them and of them. This judicial appointment system has been scrutinized and analyzed by constitutional experts, political figures and advocates for reform as much as the inner workings of a complex watch.

One of our generation’s most heated constitutional debates is about how judges are appointed to India’s highest judiciary. Some unheard-of observations by the Supreme Court on delays in judicial appointments were in the news in January 2023 which goes on to show a widening rift between the judiciary and executive. This entire controversy on the Collegium System — a system of judges appointing judges as a doctrine of necessity, through judicial legislation, but not as a pro forma constitutional provision — has reached a decisive moment of inflection point.

The underlying tension between two core constitutional principles—the one of judicial independence and the other of democratic accountability—is the core driving force behind it. Former Chief Justice of India N V Ramana said, "Judicial independence is non negotiable, but the legitimacy of its processes should be above suspicion.” This observation delineates the crux of the contemporary quarrel, a dispute that goes beyond disagreements about procedure and that is contemplating the constitutional underpinnings that validate the court’s legitimacy.

This blog interrogates the constitutional transformation of the Collegium System, as well as new challenges to its legitimacy, and the possible reforms that may mediate the competing constitutional imperatives.

The Original Constitutional Design

This was a deliberate balancing act by the framers of the Indian Constitution in respect of judicial appointments. Initially, Articles 124 and 217 provided for a consultative process for appointing judges and the appointments were to be made by the President in consultation with the then Chief Justice of India (CJI) and other judges. This deliberate separation of powers did not mean that these branches functioned independently of one another; rather, significant engagement in each branch was expected of the other, without either usurping ultimate control of the other.

Judicial Reinterpretation Through the "Three Judges Cases"

The Collegium System was developed through a trio of historic judgments that successively shifted the appointment power from executive to judiciary:

In Union of India v. S.P. Gupta (1981), the Supreme Court initially ruled that the executive remained supreme in matters of appointments and judicial consultation was not binding.

This position was dramatically reversed by the Supreme Court in Supreme Court Advocates-on-Record Association v. Union of India (1993), where the Court reinterpreted “consultation” to mean “concurrence”, thereby establishing judicial primacy in appointments.

This system was further developed in In re Special Reference 1 of 1998 (1998), which formalized the Collegium structure of the CJI and four (for Supreme Court) or two (for High Courts) senior-most judges.

The NJAC Challenge and Judicial Entrenchment

In 2015, the Supreme Court rejected the Parliament's attempt to reset the arrangements for appointment through the 99th Constitutional Amendment Act, 2014, which established the National Judicial Appointments Commission (NJAC). Holding 4:1, the Court said judicial primacy in appointments was a part of the Constitution’s basic structure and could, therefore, not be altered by a constitutional amendment.

Justice J. Chelameswar, in a blistering dissent pointing out that judicial primacy was not necessarily a requirement for judicial independence, said, “The assumption that primacy of the judiciary in appointments is essential to maintain judicial independence requires empirical validation, not mere assertion.”

Procedural Opacity and Accountability Deficit

The Collegium has been criticized for deciding the appointments in a nontransparent manner without any settled criteria. Although post-2017 the Supreme Court has published Collegium resolutions, such decisions often provide little substantive reason for selections or rejections.

As a senior advocate Fali S. Nariman, one of the towering voices at the Bar, has remarked, “A system of judges appointing judges with neither criteria nor reasons has always thrown up questions over its objectivity and fairness.

Executive Resistance and Institutional Deadlock

In recent years, relations between the government and the Collegium have witnessed unprecedented tension. The executive has engaged in selective implementation of the recommendations in question and imposed abuses that delay the processing of names so much so that we have a sort of a "selective compliance" mechanism that undermines the entire appointment process.

The friction peaked in November 2022, when the Union Law Minister described the Collegium as "alien to the Constitution." This led to a rare public rebuke from the Supreme Court, which replied in an order that "the scheme of the Constitution is such that constitutional authorities cannot afford to be in confrontation, but have to respect each other and coordinate."

Diversity and Representation Concerns

Comparison of the Judiciary Under Both Systems The Collegium System has been criticized for creating homogeneity within the judiciary. Women make up almost half of the legal profession but only 11.5 percent of High Court judges, and only 4 out of 34 Supreme Court judges in April 2023. Representation from historically marginalized communities and religious minorities is also similarly disproportionate.

This homogeneity starkly contrasts with the varied demographics of our society and leads to unsettling questions about whether the judicial system appropriately represents the diverse society it is supposed to serve.

Structural Reforms Within the Existing Framework

Several structural reforms could improve transparency and accountability without the need to amend the Constitution:

Publication of individual selection criteria for all judicial postings

Establishment of a permanent secretariat for processing applications and maintaining records

Introduction of a time-bound mechanism for consideration and finalization of recommendations

Implementation of a systematic feedback system: this means a feedback system, that will incorporate different stakeholders' input.

Constitutional Amendment with Safeguards

A more holistic solution might involve a carefully crafted constitutional amendment to enhance judicial independence with broader participation. The amendment might make it a hybrid appointment entity under judicial primacy but with significant input from the other branches of government and civil society.

The real challenge would be ensuring that such a body does not compromise judicial independence when discussing legitimate complaints regarding transparency and accountability.

Comparative Best Practices

Others can teach India that constitutional democracies can walk and chew gum — securing both judicial independence and democratic legitimacy in appointments. In short, the U.K.’s Judicial Appointments Commission and South Africa’s Judicial Service Commission are models of judicial voice at a block interview room table — except they’re steeped in broader representation.

A seismic shock over the Collegium System is a momentous constitutional moment of far-reaching significance in the structure of Indian democracy. As with the watchmaker’s paradox — the eternal maker of complex devices for measuring time is charged with ensuring they display tick-tocking accuracy long after his demise —, the trick is devising an appointments system that maintains the independence of the judiciary but at the same time guarantees that the institution responds to the shared values laid out in the Constitution and to the requirements of society.

Reforming this balance to achieve an independent judiciary while also promoting openness, diversity and accountability will be no easy task. As Justice Y. V. Chandrachud presciently wrote several decades that “Constitutional silences sometimes yell louder than its explicit provisions.” Which of these controversies will be resolved in a way that will impact far beyond the makeup of the higher judiciary and will matter for the evolution of the higher judiciary as well as India’s constitutional democracy itself?

The resolution of this controversy will have an impact considerably beyond the composition of the higher judiciary and will matter for the evolution not just of the higher judiciary, but of India’s constitutional democracy itself.

• In re Inordinate Delays in Judicial Appointments, Suo Motu Writ Petition (Civil) No. 1 of 2023, Order dated Jan. 6, 2023 (India).

• Justice N.V. Ramana, Address at the Constitution Day Celebrations, Supreme Court of India (Nov. 26, 2021).

• India Const. arts. 124, 217 (original unamended version).

• S.P. Gupta v. Union of India, (1981) Supp. SCC 87 (India).

• Supreme Court Advocates-on-Record Ass’n v. Union of India, (1993) 4 SCC 441 (India).

• In re Special Reference 1 of 1998, (1998) 7 SCC 739 (India).

• Supreme Court Advocates-on-Record Ass’n v. Union of India, (2016) 5 SCC 1 (India).

• In re Expeditious Appointment of Judges, Suo Motu Contempt Petition (Civil) No. 2 of 2023, Hearing dated Nov. 28, 2022 (India).