Justice Sanjay Kishan Kaul on his memoir ‘Without Fear or Favour ‘and the executive’s growing influence over the collegium system

India’s collegium is an internal judicial mechanism for recommending judges to the Supreme Court and High Courts. Senior judges assess candidates and decide proposed appointments, promotions, and transfers. The system matters because it limits direct political control over the judiciary. It also raises concerns about transparency, accountability, and the concentration of power within a small group of judges.

For example, the Supreme Court collegium recommends appointments and transfers. The executive receives those recommendations, checks them, and may return them for reconsideration. If the collegium repeats a recommendation, constitutional practice gives the government limited room to reject it, although delays and objections can still affect outcomes. The mechanism therefore combines judicial primacy with executive participation.

Justice Sanjay Kishan Kaul’s memoir describes the executive’s growing influence over the collegium and the politics surrounding appointments. That tension makes reform difficult. Any future change must preserve judicial independence while making decisions clearer, more reasoned, and publicly accountable without allowing political pressure to dominate.

The Supreme Court collegium usually consists of five judges. They are the Chief Justice of India and the four senior-most judges of the Supreme Court. This group recommends appointments to the Supreme Court and High Courts, as well as transfers of High Court judges. Its composition is based mainly on judicial seniority rather than election or legislative appointment.

The mechanism is designed to place professional judgment at the centre of selection. The Chief Justice leads the process, while the four senior colleagues contribute views and participate in collective decisions. A recommendation normally reflects the collegium’s institutional assessment of a candidate’s ability, integrity, experience, and suitability. The group can also reconsider a proposal after government objections.

The five-member structure gives the collegium significant authority, but it also creates concerns about limited scrutiny and opacity. Kaul’s memoir presents appointments as a site of political tension and quiet power struggles. Future reform debates will therefore focus on balancing a workable judicial body with greater transparency and safeguards against executive pressure.

Judicial independence means judges must decide cases without fearing punishment, exclusion, or career consequences from the elected government. Appointment power matters because it shapes who enters the courts and who may later advance. If the executive gains excessive influence, candidates may be chosen for political compatibility rather than independence, ability, or integrity. Public trust could then decline.

The danger is not limited to individual appointments. A government with influence over selections and transfers could create subtle pressure across the institution. Judges might hesitate before ruling against executive policies, especially in politically sensitive cases. The court could still issue independent judgments, but the perceived risk of dependence would weaken its authority and its role as a constitutional check.

Kaul’s memoir identifies the executive’s growing influence as a central concern. The forward challenge is to improve the collegium without replacing judicial independence with political control. Clear reasons, consistent procedures, and meaningful accountability could strengthen legitimacy while preserving courts’ ability to review government action freely.

The executive currently participates in the appointment process even though the collegium makes the recommendation. Government departments process the proposal, conduct background and intelligence checks, and send it through the formal approval chain. The executive can also return a recommendation to the collegium for reconsideration. This gives the government practical influence over timing and scrutiny.

The key mechanism is a limited exchange rather than a single decision. The government may raise objections or ask judges to review a name. If the collegium reiterates its recommendation, established constitutional practice expects the executive to accept it. In reality, delays, incomplete processing, or repeated queries can still affect when an appointment or transfer takes effect.

This role is central to the tension described in Kaul’s memoir. The executive’s participation can provide security checks and administrative coordination, but excessive delay or pressure may undermine judicial independence. Reform discussions therefore need to define timelines, reasons, and responsibilities clearly while preserving the judiciary’s decisive constitutional role.

The Second Judges Case, officially Supreme Court Advocates-on-Record Association v. Union of India, was decided in 1993. It reversed the earlier understanding that the Chief Justice’s view did not have primacy. The ruling held that appointments should reflect the Chief Justice’s institutional opinion, formed through consultation with senior judges. This shifted control decisively toward the judiciary.

The Third Judges Case came in 1998 through a presidential reference seeking clarification. The Supreme Court explained that the Chief Justice could not act alone. For Supreme Court appointments, the collegium would comprise the Chief Justice and four senior-most judges. It also clarified consultation procedures and strengthened the collective character of recommendations. The mechanism became a structured judicial process rather than one individual’s choice.

These rulings form the legal foundation of the modern collegium system. They aimed to protect independence from executive dominance, but they also created questions about openness and accountability. Kaul’s memoir shows why the balance remains unsettled: judicial primacy exists, yet the executive continues to influence the process in practice.

The main alternative to the collegium has been an independent appointments commission. India attempted this through the National Judicial Appointments Commission, or NJAC, which included the Chief Justice, senior judges, the Union law minister, and other members. Supporters argued that a broader body would add transparency, public accountability, and executive representation. Other proposals have similarly suggested balanced commissions with judicial and non-judicial members.

The institutional mechanism is the point of disagreement. A commission could reduce the collegium’s concentration of power, but political members might influence selections, especially when the government has a veto or blocking role. In 2015, the Supreme Court invalidated the NJAC constitutional amendment and related law. It held that the arrangement damaged judicial independence, treated as part of the Constitution’s basic structure.

The debate therefore has no simple winner. The collegium protects judicial primacy but is criticised for opacity. A commission could broaden scrutiny but risk political capture. Kaul’s memoir reinforces the need for systemic reform that improves accountability without weakening the courts’ independence from elected branches.

Separation of powers divides public authority among the legislature, executive, and judiciary. Elected branches make policy and administer government, while courts interpret the Constitution and resolve disputes. This division matters because rights need an institution capable of reviewing government decisions independently. Without that check, a majority government could use public power without effective constitutional restraint.

The mechanism is mutual oversight. Legislatures pass laws, executives implement them, and courts test their legality. Courts must not run government, but they must be able to invalidate unlawful action or protect people against official abuse. That role requires judges to decide cases without fearing removal, transfer, or blocked career advancement by the government involved in the dispute.

The concern in Kaul’s memoir is therefore structural, not merely personal. Executive influence over appointments can blur institutional boundaries even without direct orders in individual cases. Preserving independence while improving transparency is essential. Reforms should strengthen public confidence without allowing appointments to become a route for political control over constitutional review.