A Supreme Court judge defends the Collegium and hits back at the Centre
Who should pick judges, and who is to blame for vacancies?
Published 24 September 2026. Written by Pratidin from the reports linked at the end; every fact checked by a separate review before publishing. How we work
Supreme Court judge Justice Dipankar Datta defended the Collegium system and said the clamour against it was a weak attempt to hide the government's own dereliction and failure. The Court described the government's recent remarks on the Collegium as 'disquieting'.
The exchange revives a long-running dispute over judicial appointments. Justice Datta has argued on earlier occasions that the idea of 'judges appointing judges' is misleading, because the government delays or does not act on many Collegium recommendations; he said in 2025 that a recommendation he had made as a Calcutta High Court Collegium member in 2019 was still pending. He has also criticised the Collegium's own opacity, remarking in March 2026 that even judges often do not know when it meets.
The Collegium system was created by the Second Judges Case (1993) and the Third Judges Case (1998). Parliament's attempt to replace it with the National Judicial Appointments Commission through the 99th Amendment (2014) was struck down by the Supreme Court in 2015, and the Memorandum of Procedure for appointments has still not been finalised.
Prelims facts
- The Collegium emerged from the Second Judges Case (1993) and the Third Judges Case (1998).
- The 99th Amendment (2014) created the National Judicial Appointments Commission, which the Supreme Court struck down in 2015.
- Articles 124 and 217 govern the appointment of Supreme Court and High Court judges.
Quick recall
- Which cases created the Collegium system?
- The Second Judges Case (1993) and the Third Judges Case (1998).
- What did the First Judges Case (S.P. Gupta, 1981) hold?
- That 'consultation' with the CJI did not mean concurrence, giving the executive primacy.
- Which amendment created the NJAC?
- The 99th Constitutional Amendment (2014).
- When was the NJAC struck down?
- In October 2015, in the Fourth Judges Case.
- Who makes up the Supreme Court Collegium?
- The Chief Justice of India and the four senior-most judges.
- Which Articles govern appointment of Supreme Court and High Court judges?
- Article 124 (Supreme Court) and Article 217 (High Courts).
- What is the Memorandum of Procedure?
- The document setting out the process for judicial appointments; a revised version has still not been finalised.
- What is Justice Dipankar Datta's argument on the Collegium?
- That 'judges appointing judges' is misleading, because the government delays or ignores many Collegium recommendations.
Prelims practice question
The National Judicial Appointments Commission was created by which Constitutional Amendment?
- 97th
- 99th
- 101st
- 103rd
Show answer
Answer: (b) 99th. The 99th Amendment (2014) created the NJAC; the Supreme Court struck it down in October 2015.
Use this in UPSC Mains: previous-year questions
Recurring theme: Judicial appointments and the balance between judicial independence and accountability
- How to use this
Supplies the evolution of the Collegium, its defence and its criticisms for the Indian half of the answer.
- Under Articles 124 and 217, the Second (1993) and Third (1998) Judges Cases turned 'consultation' into 'concurrence', creating the Collegium; the 99th Amendment's NJAC (2014) was struck down in 2015.
- Justice Dipankar Datta argues 'judges appointing judges' is misleading because the government delays recommendations; he said in 2025 that his 2019 Calcutta High Court recommendation was still pending.
- Opacity is a key weakness: Justice Datta remarked in March 2026 that even judges often do not know when the Collegium meets, and the Memorandum of Procedure remains unfinalised.
- How to use this
Gives the independence versus accountability tension in judicial appointments and reforms that could balance the two.
- On independence: the NJAC was struck down in 2015 because it gave the executive and non-judicial members a potential veto over appointments.
- On accountability: the Collegium publishes no criteria, reasons or records, and even judges often do not know when it meets, according to Justice Datta.
- Suggested balance: finalise the Memorandum of Procedure with timelines for both sides, publish selection criteria and set up a permanent secretariat to assess candidates.
"Constitutionally guaranteed judicial independence is a prerequisite of democracy". Comment.
How to use thisUse the Collegium row as a current example of how control over appointments is tied to judicial independence from the executive.
- Supporters argue the Collegium insulates appointments from executive influence, protecting judicial independence, which is part of the basic structure.
- Justice Dipankar Datta said the clamour against the Collegium was a weak attempt to hide the government's own failure, and the Court called the government's remarks 'disquieting'.
- Justice Datta argues the government delays or does not act on many Collegium recommendations; note also the pendency of over five crore cases.
- How to use this
Gives the grounds and aftermath of the NJAC judgment, showing that the appointment dispute it settled remains alive.
- The 99th Amendment (2014) created the National Judicial Appointments Commission, which the Supreme Court struck down in 2015.
- Note that the Court struck it down because it gave the executive and non-judicial members a potential veto over appointments.
- The 2015 judgment suggested a permanent secretariat to assess candidates, yet the Memorandum of Procedure has still not been finalised and the Centre-judiciary dispute continues.
Mains practice question
The Collegium system protects judicial independence but lacks transparency. Evaluate the debate and suggest reforms. (250 words)
Model answer
Under Articles 124 and 217, judges are appointed by the President after consultation with the judiciary. The Supreme Court's Second (1993) and Third (1998) Judges Cases turned 'consultation' into 'concurrence', creating the Collegium of senior judges.
Case for the Collegium
- Insulates appointments from executive influence, protecting judicial independence, a part of the basic structure.
- The NJAC was struck down in 2015 because it gave the executive and non-judicial members a potential veto.
Criticisms
- Opacity: no published criteria, reasons or records.
- Nepotism and limited diversity: few women, SC/ST and OBC judges.
- Delays: the Memorandum of Procedure is still not finalised; the government sits on names and the Collegium reiterates them, leaving vacancies.
The present dispute
The Court argues that most delays arise from the government's failure to clear names, while the government questions the Collegium's accountability. Both share responsibility for pendency of over five crore cases.
Reforms
- Finalise the Memorandum of Procedure with timelines for both sides.
- Publish eligibility criteria and reasons for selection.
- A permanent secretariat to assess candidates, as suggested in the 2015 NJAC judgment.
- Deemed approval if the government does not act within a fixed period.
Independence and accountability are not opposites. A transparent Collegium with enforceable timelines can deliver both.
The basics
Why this matters
Who appoints judges decides how independent the judiciary is. The Collegium system lets senior judges choose, and it faces criticism for opacity. In September 2026, a Supreme Court judge pushed back, arguing that the government's own delays are a bigger problem.
From consultation to concurrence
The Constitution says the President appoints judges after consultation with the judiciary. The Supreme Court's reading of that word changed over three cases, creating the Collegium.
- 1981First Judges Case: executive has primacy
- 1993Second Judges Case: Collegium created
- 1998Third Judges Case: Collegium expanded to CJI plus four
- 201499th Amendment creates NJAC
- 2015NJAC struck down
Why the NJAC failed
The National Judicial Appointments Commission included the Law Minister and two eminent persons, and any two members could block a candidate. The Court held that this threatened judicial independence, part of the Basic structure doctrine.
- Senior judges decide
- Protects independence
- Criticised as opaque
- Judges, Law Minister, eminent persons
- More outside input
- Two members could veto
How an appointment moves
Even under the Collegium, the government has a role.
- 1RecommendationHigh Court collegium proposes names.
- 2InputsState and Centre add views and background checks.
- 3Supreme Court CollegiumApproves or rejects.
- 4GovernmentCan return a name once; a reiterated name should be appointed.
- 5NotificationThe President appoints.
What is unsolved
The Memorandum of Procedure is still not finalised, there are no timelines for the government to act, and the Collegium's criteria are not published. Both sides blame each other for vacancies.
You now know
- The Collegium came from the Second (1993) and Third (1998) Judges Cases.
- The 99th Amendment's NJAC was struck down in 2015 to protect judicial independence.
- The Supreme Court Collegium is the CJI and four senior-most judges.
- The Memorandum of Procedure and timelines for the government remain unresolved.
Go deeper
In one line: The Collegium lets senior judges choose judges, and the latest clash is over who is really responsible for delays and vacancies.
Why it matters for UPSC
GS2 asks about judicial independence and accountability. The Collegium is one of the most frequently asked topics in Polity.
The core idea
The Constitution says judges are appointed by the President after 'consultation' with the judiciary. In a series of cases, the Supreme Court read that as 'concurrence', creating the Collegium system. Parliament tried to replace it with the National Judicial Appointments Commission, but the Court struck that down in 2015 to protect judicial independence.
The system is criticised for opacity. But judges such as Justice Datta point out that the government also delays or sits on names, so vacancies are a shared failure. The unfinished Memorandum of Procedure is where both sides could fix timelines.
Numbers and dates to remember
- 1981, 1993, 1998: the three Judges Cases.
- 2014: 99th Amendment creates NJAC; 2015: struck down.
- Collegium: CJI plus four senior-most judges.
Where to go next
- Second Judges Case: How the Collegium was born
- National Judicial Appointments Commission: The failed alternative
- Memorandum of Procedure: The missing rulebook
- Basic structure doctrine: Why judicial independence is protected
In one line: The Collegium protects independence but lacks transparency, and delays arise from both the Collegium and the government.
The case for the Collegium
Judges are best placed to judge legal ability, and keeping the executive out protects independence. The Court in the NJAC case held that giving non-judicial members a veto risked executive influence.
The criticisms
- No published criteria or reasons.
- Limited diversity by gender and caste.
- Allegations of favouritism.
The government's role in delay
The government sometimes sits on recommended or reiterated names without deciding. Justice Datta has argued that this, not the Collegium, causes many vacancies.
Reform options
- Finalise the Memorandum of Procedure with timelines.
- A permanent secretariat to evaluate candidates, as suggested after the NJAC ruling.
- Published criteria and reasons.
- A deemed-approval rule if the government does not act in time.
The Second Judges Case and the Basic structure doctrine set the limits: reform must not give the executive control.
Where to go next
- Second Judges Case: How the Collegium was born
- National Judicial Appointments Commission: The failed alternative
- Memorandum of Procedure: The missing rulebook
- Basic structure doctrine: Why judicial independence is protected
Second Judges Case
How the Collegium was born
In one line: In Supreme Court Advocates-on-Record Association v. Union of India (1993), the Court held that the CJI's opinion has primacy in appointments, creating the Collegium.
The shift
It overruled the First Judges Case (1981), which had given the executive primacy, and read 'consultation' as effectively 'concurrence'.
The Third Judges Case (1998)
A Presidential reference led the Court to expand the Supreme Court Collegium to the CJI and four senior-most judges.
Significance
Judicial appointments became a judge-led process, unique among major democracies.
Where to go next
- National Judicial Appointments Commission: The failed alternative
- Memorandum of Procedure: The missing rulebook
National Judicial Appointments Commission
The failed alternative
In one line: The NJAC, created by the 99th Amendment (2014), was to appoint judges but was struck down by the Supreme Court in October 2015.
Composition
The CJI, two senior-most Supreme Court judges, the Union Law Minister, and two eminent persons chosen by a panel of the PM, CJI and Leader of Opposition.
Why it was struck down
Any two members could veto a candidate, allowing non-judicial members to block judges' choices, which the Court held violated judicial independence.
Aftermath
The Court restored the Collegium and asked for an improved Memorandum of Procedure.
Where to go next
- Second Judges Case: How the Collegium was born
- Memorandum of Procedure: The missing rulebook
Memorandum of Procedure
The missing rulebook
In one line: The Memorandum of Procedure sets out the step-by-step process for appointing and transferring judges.
Why a new one is needed
After the NJAC ruling in 2015, the Court asked the government to finalise a revised memorandum covering eligibility criteria, transparency, a secretariat and complaints.
The deadlock
The government and the Collegium have disagreed on clauses such as the government's right to reject names on national security grounds, so it remains unfinalised.
Why it matters
Clear timelines in the memorandum could reduce delays in appointments.
Where to go next
- Second Judges Case: How the Collegium was born
- National Judicial Appointments Commission: The failed alternative
Memorandum of Procedure: every story that connects to it (2)
Basic structure doctrine
Why judicial independence is protected
In one line: The basic structure doctrine holds that Parliament can amend the Constitution but cannot destroy its essential features.
Origin
Kesavananda Bharati v. State of Kerala (1973), decided 7:6 by a 13-judge bench.
Features recognised
Judicial review, independence of the judiciary, secularism, federalism, free and fair elections, and the rule of law, among others.
Relevance
The NJAC was struck down because it was held to violate judicial independence, a basic feature.
Where to go next
- Second Judges Case: How the Collegium was born
- National Judicial Appointments Commission: The failed alternative
Take the 24 September 2026 quiz: 30 Prelims-style questions with answers