How the Judiciary Loses Control Over Judge Appointments in India

Judges in India recommend judicial appointments while the government ultimately decides when and how those names are cleared, creating severe delays and altered seniorities in higher courts. In the 1993 Second Judges case, the Supreme Court ruled that the Chief Justice of India, in consultation with senior colleagues, holds primacy over the government in appointments. The Third Judges case in 1998 established the Collegium comprising the Chief Justice and four senior-most judges. In October 2015, the Supreme Court struck down the National Judicial Appointments Commission constitutional amendment by a four-to-one majority to protect judicial independence, and in April 2021 ruled that reiterated names must be notified within three to four weeks.

Specific Cases

In January 2018, the Collegium recommended Justice K.M. Joseph and Ms. Indu Malhotra together, but the government notified only one and delayed Justice Joseph until August, causing him to take his oath below two judges recommended six months after him. In May 2019, the Collegium recommended Justice Akil Kureshi for Madhya Pradesh, but after government delays, quietly modified the proposal to send him to Tripura instead. In September 2022, the Collegium proposed Justice S. Muralidhar for the Madras High Court, but left his file untouched for seven months before recalling the proposal in April 2023 without any reply from the government. In August 2025, the Collegium resolved to send Justice Atul Sreedharan to Chhattisgarh, but later redirected him to Allahabad in October on reconsideration sought by the government.

Advocate Recommendations

Recommendations for advocates face similar delays and alterations. In January 2023, the Collegium reiterated five advocates at once, including Mr. Saurabh Kirpal for Delhi, whose name travelled since 2017, and Mr. R. John Sathyan for Madras, whose clearance stalled over an article critical of the Prime Minister. Mr. Amitesh Banerjee and Mr. Sakya Sen for Calcutta faced a second reiteration, while Mr. Somasekhar Sundaresan was appointed ten months later. In August 2024, three lawyers were recommended for Delhi, leading Ms. Shwetasree Majumdar to withdraw her consent in July 2025 after a year of silence, while Mr. Rajesh Datar withdrew from the Bombay list after nine months. On September 10, 2026, the Collegium cleared eight judicial officers for Delhi, but nine days later seven were notified while the top name was left out without public reason. A bench headed by Justice Sanjay Kishan Kaul warned in 2023 that this pick-and-choose approach disturbs seniority.

Context

The Indian judicial appointment process relies on a delicate balance between the judiciary and the executive, where the government holds background information and can object once with reasons. However, persistent delays, split notifications, and unaddressed files weaken the system's transparency and leave high court vacancies unfilled while case backlogs continue to rise.