Almost every discussion of judicial appointments in India is a debate about method. Should judges appoint judges, or should the executive have a formal role, or should there be an independent commission? It is an important question, it has produced a constitutional amendment and a landmark judgment striking it down, and it is very nearly the wrong question if what you care about is the number of empty seats on the bench.
The vacancy problem in the High Courts has persisted through every version of the appointment method India has tried. It survived executive primacy, it survived the transition to judicial primacy, and it would in all likelihood have survived a commission. That is a clue. The bottleneck is not principally who decides. It is how long the deciding takes, and the fact that no stage of the process has an enforceable clock attached to it.
This piece sets out the constitutional text, the case law that built the present system, the commission episode, and how appointments actually proceed. Then it makes the argument about delay.
What the Constitution Says
The text is brief and, read cold, does not obviously produce a collegium.
- Article 124(2) provides that every judge of the Supreme Court shall be appointed by the President after consultation with such judges of the Supreme Court and of the High Courts as the President may deem necessary, with a proviso that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
- Article 217(1) provides for appointment of High Court judges by the President after consultation with the Chief Justice of India, the Governor of the State, and, for appointments other than that of the Chief Justice, the Chief Justice of the High Court.
- Article 222 provides for transfer of a judge from one High Court to another, after consultation with the Chief Justice of India.
- Article 224 provides for appointment of additional and acting judges, and Article 224A allows the appointment of retired judges to sit and act as judges of a High Court, with the previous consent of the President.
- Article 233 deals with the appointment of district judges, by the Governor in consultation with the High Court exercising jurisdiction in the State, which is a separate process from the higher judiciary and is often forgotten in these debates.
The entire constitutional architecture of the collegium sits on the meaning of one word in those provisions: consultation. What the Supreme Court did, across three decisions, was decide what consultation requires.
The Three Judges Cases
The doctrinal history is short enough to state accurately, and it is worth stating accurately because it is routinely garbled.
| Decision | Year | What it held | Effect |
|---|---|---|---|
| S. P. Gupta v Union of India, the First Judges Case | 1981 | Consultation does not mean concurrence. The opinion of the Chief Justice of India is not binding on the executive | Primacy in appointments rested with the executive. |
| Supreme Court Advocates-on-Record Association v Union of India, the Second Judges Case | 1993 | Overruled the earlier view. Consultation in the constitutional scheme requires the Chief Justice's opinion to have primacy, and that opinion is to be formed in consultation with senior colleagues rather than individually | The collegium was born. Primacy moved to the judiciary. |
| In Re Special Reference No. 1 of 1998, the Third Judges Case | 1998 | Answering a Presidential reference, the Court clarified the composition and working of the collegium, including that for Supreme Court appointments the Chief Justice consults a plurality of the senior-most judges, and for High Court appointments a smaller group | The present structure of the collegium, and the requirement that its recommendations reflect a collective view rather than the Chief Justice's individual one. |
The important conceptual point is that the collegium is not a body created by the Constitution or by statute. It is a construction of constitutional interpretation, built out of the word consultation, and its composition and working derive from judgments rather than from a written instrument that Parliament passed. Both its defenders and its critics tend to agree on that description, while disagreeing entirely about what follows from it.
The Commission That Lasted Months
In 2014 Parliament enacted the Ninety-ninth Constitutional Amendment and the National Judicial Appointments Commission Act, creating a commission to make appointments to the higher judiciary, composed of judicial members, the Union Minister of Law and Justice, and eminent persons selected by a designated committee, with a veto mechanism if two members dissented.
In 2015 a Constitution Bench struck down both the amendment and the Act, by a majority of four to one, holding that the scheme impaired the primacy of the judiciary in appointments and thereby the independence of the judiciary, which is part of the basic structure. The collegium was restored. The Court simultaneously accepted that the collegium's working could be improved, and invited suggestions on the memorandum of procedure that governs the process.
That last point is where the story stalls. A revised memorandum of procedure, meant to codify timelines, criteria and transparency in the appointment process, has been the subject of correspondence between the government and the judiciary since. Agreement on a final text has proved elusive, and the process therefore continues to operate under an older instrument supplemented by practice.
Two separate arguments, often conflated
The constitutional argument is about who should have primacy in appointing judges, and it was decided in 2015. The administrative argument is about how the process should run: what criteria apply, what is disclosed, and how long each stage may take. The second was never resolved, and it is the one that determines whether seats get filled. Treating criticism of the process as an attack on judicial primacy has made it harder to fix things that both sides say they want fixed.
How an Appointment Actually Proceeds
Stripped to its mechanics, the process for a High Court appointment runs roughly as follows, and the number of stages is itself part of the story.
Initiation at the High Court
The Chief Justice of the High Court, in consultation with senior colleagues, identifies candidates from the bar and from the district judiciary and forwards a proposal. The timing of initiation relative to anticipated vacancies is itself a variable, and late initiation guarantees a gap.
Views of the State government
The proposal goes to the State government, whose views are sought and forwarded, along with the Governor's. There is no external limit on how long this takes.
Processing by the Union government
The Department of Justice processes the proposal, obtains inputs including from intelligence agencies, and places it before the collegium with the material gathered.
The Supreme Court collegium decides
The collegium considers the proposal and either recommends, defers or declines. Its recommendation is the operative decision on merit.
The government acts on the recommendation
The government may return a recommendation for reconsideration. If the collegium reiterates it, convention as stated in the Judges Cases is that the appointment should follow. Convention, however, is not a deadline.
Warrant of appointment and oath
The President issues the warrant, the appointee is sworn in, and only at this point does the vacancy actually close.
Count the handoffs. Six stages, four institutions, and no stage with a legally enforceable time limit. A process with that structure does not fail dramatically. It simply takes a long time, and the length varies unpredictably from case to case, which makes planning impossible for the courts trying to manage their strength.
The Argument: Delay Drives the Vacancy Crisis, Not Method
Here is the claim this article is making, stated directly. Both the defenders and the critics of the collegium understate how much of the vacancy problem is produced by elapsed time rather than by who holds the pen.
Vacancies in the High Courts have run at a substantial fraction of sanctioned strength for many years, frequently around a quarter and at times worse. That has been true across changes in government, across the pre-collegium and collegium eras, and it has been true while both institutions publicly agreed that filling posts is a priority. When a problem persists across every configuration of the decision rule, the decision rule is unlikely to be the binding constraint.
The structural reasons are identifiable and unglamorous.
Vacancies are predictable and initiation is not
Retirement dates are known years in advance, because judges retire at fixed ages. A process that begins after a seat falls vacant rather than months before it does is guaranteeing a gap, and the guidance to initiate in advance is not consistently followed.
No stage carries a clock
State government views, central processing, collegium consideration and the final warrant each take as long as they take. A file can sit at any of these without breaching anything.
Reconsideration has no end state
The government may return a recommendation. If reiterated, convention says the appointment should be made, but nothing specifies when. A recommendation can therefore remain pending without ever being refused.
Attrition runs continuously
Even a well-functioning process is filling a leaking bucket, because retirements and elevations occur every month. A backlog in appointments compounds in exactly the way a backlog in cases does.
A vacancy is not created by a disagreement about the candidate. It is created by the calendar, months in advance, and everybody involved knows the date.
The system's own emergency valve is instructive here. Article 224A, which allows retired judges to be appointed to sit as judges of a High Court, lay largely unused for decades and has in recent years been revived as a mechanism for dealing with arrears. The fact that the response to a vacancy problem is to bring back judges who have already retired is a fairly clear statement about where the constraint sits.
The Transparency Question, Fairly Put
The most persistent criticism of the collegium is opacity: that its deliberations are not disclosed, its criteria are not published in a form that can be applied by anyone else, and that the resulting appointments are therefore difficult to evaluate. Defenders respond that candour about individuals is impossible in public, that publishing reasons for declining a candidate would be professionally devastating and legally fraught, and that confidentiality protects the process rather than the participants.
Both positions have merit and they are not actually irreconcilable. The Court has at points published collegium resolutions on its website, disclosing recommendations and, in some cases, brief reasons. That practice has waxed and waned. It demonstrates that a middle position exists: disclosure of outcomes and of the criteria applied, without disclosure of individual assessments.
The composition question sits alongside it. Concerns about regional, gender and social representation on the higher judiciary are made from within the institution as well as outside it, and they are not answerable without some published account of the pool considered and the basis of selection. This is not an attack on judicial primacy. It is a question about the administration of a process, which is the argument that never got finished after 2015.
Why This Matters Downstream
For practitioners and for anyone working with judicial data, appointments are not an abstract governance topic. They show up in the record in ways that are easy to miss.
Bench composition changes what happens to matters. A part-heard matter before a judge who is elevated or transferred is a matter that may have to be reargued. The roster shifts when strength changes, and subject categories move between benches. Judgments reserved before an elevation are delivered under time pressure. And for research purposes, a judge's body of work is split across the courts they sat in, which means tracing a line of reasoning by a particular judge requires searching more than one court.
That last point is the practical connection to how we build. CourtMesh lets you filter by judge across the corpus, which spans the Supreme Court, all twenty-five High Courts, the district judiciary and tribunals including NCLT, NCLAT, ITAT and CESTAT, drawn only from official government portals. Following a judge's reasoning across an elevation, or understanding how a bench has approached a category of matter, is a retrieval problem, and it is one that becomes much harder when strength and rosters are in constant flux.
The honest conclusion is that India has spent thirty-five years arguing about the method of judicial appointment and comparatively little effort on the administration of it. The method question was decided in 2015 and is unlikely to be reopened soon. The administration question, timelines for each stage, initiation in advance of known retirements, and a published account of criteria, is open, is agreed by most participants to be a problem, and would move the numbers. It just does not make for a good argument.
Research the bench, not just the judgment
Judges move between courts, benches are reconstituted and rosters change, and a judge's body of reasoning ends up spread across the forums they have sat in. CourtMesh lets you search and filter by judge, court, case type and year across the Supreme Court, all twenty-five High Courts, the district judiciary and tribunals including NCLT, NCLAT, ITAT and CESTAT, sourced only from official government portals. Find the reasoning, wherever it was delivered, and read it at source.
Explore CourtMesh
