Fantasy to imagine collegium isolated from political pressure: Ex-SC judge Sanjay Kaul; flags Centre’s NJAC resentment

The collegium is the system through which senior Supreme Court judges make recommendations for appointments to India’s higher constitutional courts. It developed from Supreme Court rulings in the 1990s, which gave the judiciary primacy in recommending judges. Its central purpose is to protect appointments from direct political control.

The article does not set out every formal step. It describes the collegium deliberating on candidates before recommendations are sent to the government. The government can raise questions or concerns, but Justice Sanjay Kishan Kaul objected when officials sought approval before judges had formally considered a candidate.

The system is not completely insulated from politics. Kaul calls that idea “fantasy” and also describes the collegium as deeply imperfect because it is opaque and relies on informal channels. The continuing challenge is to preserve judicial independence while maintaining necessary consultation with the executive.

Justice Sanjay Kishan Kaul said political pressure has always affected the collegium, despite its purpose of limiting political influence over judicial appointments. He described the government’s conduct as shaped by its inability to accept the Supreme Court’s decision against the National Judicial Appointments Commission in October 2015.

Kaul drew a sharp line between consultation and “pre-approval.” He objected to the government seeking its nod before the collegium had formally deliberated on a candidate. He also recounted questions about a minority-faith candidate’s representation and caste background, which he considered irrelevant and troubling. The government eventually withdrew its objections.

Kaul believed the court should engage the government firmly and collectively. He viewed former CJI Dhananjaya Y Chandrachud as too deferential on appointments and too willing to manage the executive relationship personally. Kaul nevertheless acknowledged that the collegium itself is opaque and vulnerable.

The proposed National Judicial Appointments Commission would have had six members. Its membership included three senior judges, the Union law minister, and two eminent persons. This structure would have placed judicial and political representatives inside the same appointment body.

The commission’s blocking mechanism was unusually powerful. Any two of its members could have stopped a proposed appointment. That meant a recommendation could fail even without a majority opposing it. The article presents this veto as a central feature of the arrangement that Parliament approved through a constitutional amendment and companion law.

The NJAC never began operating. In October 2015, a five-judge Supreme Court Constitution bench struck it down by a 4:1 majority. The decision restored the collegium system, under which the judiciary retained primacy in recommending appointments to the constitutional courts.

The article states that the Supreme Court struck down the NJAC in October 2015 and restored the collegium system. It does not provide the bench’s detailed legal reasoning. It does explain that the NJAC would have included the Union law minister and two eminent persons alongside three senior judges, allowing any two members to block an appointment.

A five-judge Constitution bench rejected the arrangement by a 4:1 majority. The article connects the ruling to the constitutional question of who should control judicial appointments. The collegium had emerged from earlier Supreme Court rulings that gave the judiciary primacy in recommending judges to the constitutional courts.

Justice Kaul personally believed the NJAC should have been allowed to function before being rejected outright. However, he stressed that disagreeing with a constitutional ruling is different from disregarding it. He said political branches must follow the system “in letter and spirit.”

When the government seeks approval before the collegium has formally considered a candidate, the appointment process can shift from judicial deliberation to executive influence. Justice Kaul said consultation between the judiciary and government is inevitable, but pre-approval crosses an important line.

He described the government raising questions about a minority-faith candidate’s representation and the caste of the candidate’s family before conversion. Kaul considered those questions irrelevant and troubling. He told Justice Chandrachud that appointments based on such considerations would effectively let the government appoint judges itself. He then closed the file and left the meeting.

The meeting was adjourned, and the government eventually relented. Kaul’s broader warning was that political actors will use any opening they receive. The implication is that the collegium must deliberate collectively and protect institutional integrity while still communicating with the executive.

Both sides are involved because judicial appointments affect the courts while also operating within a constitutional system that includes elected government. Under the collegium arrangement described in the article, senior judges have primacy in recommending candidates to the constitutional courts. The government remains part of the consultation process.

The executive can raise concerns about a recommendation. The article describes officials questioning a candidate’s faith representation and family caste history. Justice Kaul accepted that some consultation was inevitable, but rejected government approval before the collegium had deliberated. He argued that such pre-approval would give political actors excessive influence.

The desired balance is therefore consultation without control. Kaul said the political branches must follow the Supreme Court’s constitutional ruling in letter and spirit. He believed the court should deal with the government firmly and collectively, while acknowledging that the collegium’s opacity and informal channels make that balance difficult.

Judicial independence matters because courts must interpret laws and constitutional limits without fearing political punishment or pressure. In a constitutional democracy, courts may have to review government action. Their credibility depends on judges being able to decide cases and appointments according to law rather than political preference.

Separation of powers limits political control by dividing public authority among institutions. The executive and legislature govern and make laws, while courts interpret the Constitution and resolve disputes. The article applies this principle to appointments: the collegium gives senior judges primacy, while the government remains involved through consultation. Neither side should turn consultation into domination.

The article also shows why the balance is difficult. Kaul says the collegium is opaque and vulnerable to informal pressure, while political actors may exploit openings. Stronger collective deliberation and respect for constitutional rulings can help preserve institutional integrity, although the article does not propose a specific reform.