WHEN JUDGES CHOOSE JUDGES: THE COLLEGIUM, THE NJAC, AND THE UNFINISHED SEARCH FOR A CONSTITUTIONAL SETTLEMENT A comparative and interdisciplinary enquiry into the appointment of judges to the superior judiciary of India

Abstract

The appointment of judges to the superior judiciary has remained the most contested question in Indian constitutional law since the supersession crisis of 1973. The Constitution provides for appointment by the President “after consultation” with certain judicial functionaries, but says nothing about who holds primacy when disagreement arises. That silence has produced four landmark decisions, a constitutional amendment struck down on basic-structure grounds, and a Memorandum of Procedure that remains unsigned after nearly a decade. This paper examines the Collegium system and the National Judicial Appointments Commission, subjecting both to the same critical scrutiny rather than treating either as a self-evident good. Its central submission is that the NJAC failed because of identifiable design features specifically, the two-member veto, the reduction of judicial membership, the shift of initiation, and the removal of the Governor’s consultative role not because a judicial appointments commission is inherently incompatible with the basic structure. The paper deploys interpretive doctrine, the proportionality standard, and a structured comparison of four jurisdictions (the United Kingdom, the United States, France, and South Africa) to test this thesis. It then draws on principal–agent theory, institutional economics, and the sociology of judicial recruitment to explain why the Collegium’s structural deficits persist.