Is it time to re-think how we appoint judges: Collegium system, NJAC and the fire incident at the house of Justice Varma
Fire has long served as a metaphor for exposure and purification in human history. On March 14, 2025, a fire occurred at the official residence of Justice Yashwant Varma of the Delhi High Court, an event that has prompted reflection beyond its immediate impact.
Reports of charred currency discovered in the aftermath have raised public concern and questions about judicial integrity. Justice Varma has firmly denied any misconduct, asserting that neither he nor his family stored cash in the affected storeroom, and has described the allegations as a calculated attempt to malign his reputation.
In response, the Supreme Court of India, on March 22, 2025, constituted a three-member panel, consisting of Justices Sheel Nagu, G S Sandhawalia, and Anu Sivaram, to conduct an internal inquiry, during which Justice Varma has been relieved of judicial duties.
This development must not be prejudged, as the principle of presumption of innocence remains fundamental to justice, requiring us to await the panel’s findings.
Nevertheless, the incident offers an opportunity for a broader academic inquiry into India’s judicial appointment process, embodied in the collegium system, and the implications of the 2016 Supreme Court Advocate-on-Record Association v Union of India judgment.
This op-ed argues that the current system’s opacity and insularity merit reconsideration, drawing on historical and comparative perspectives to advocate for a transparent and balanced alternative, such as the National Judicial Appointments Commission (NJAC).
What is the Collegium System
The collegium system, through which a group of senior judges recommends appointments and transfers to India’s higher judiciary, lacks an explicit foundation in the Constitution or its amendments.
Articles 124(2) and 217(1) stipulate that the President appoint Supreme Court and High Court judges in consultation with the Chief Justice of India and other designated judicial figures, implying a cooperative process between the executive and judiciary.
However, judicial interpretations, notably the Second Judges Case (1993) and the Third Judges Case (1998), transformed this consultation into concurrence, granting the judiciary primacy and diminishing the executives’ role.
Formalized by the Memorandum of Procedure since 1947 and refined over decades, the collegium now consists of the Chief Justice of India and the four senior-most Supreme Court judges, whose recommendations carry near-binding weight absent extraordinary circumstances.
While designed to protect judicial independence, this system has faced scrutiny, even from its architects. Fali S Nariman, a distinguished advocate instrumental in the Second Judges Case, later expressed regret in his memoir Before Memory Fades, titling his reflection A Case I Won but Which I Prefer to Have Lost. Justice J S Verma, who presided over that decision, similarly lamented its unintended outcomes.
These reservations highlight a systemic issue: the collegiums lack of transparency and its insular nature have fueled perceptions of nepotism and exclusivity, with appointments occasionally appearing to favor individuals with familial or professional ties to existing or former judges.
Such concerns have been echoed by official bodies, including the National Commission to Review the Working of the Constitution (2002), the Administrative Reforms Commission (2007), and the Law Commission of India (2008), which have questioned the systems compatibility with democratic accountability and openness.
Lessons from the Past
Understanding the collegiums anomaly requires a historical lens. The Magna Carta of 1215, secured from King John by English barons, established an early principle that no authority stands above accountability, laying a foundation for checks on power.
In 17th-century England, Sir Edward Coke defended judicial independence against Stuart monarchs, yet anchored it to parliamentary oversight rather than judicial isolation.
In the United States, the Constitution of 1787 instituted a system where federal judges are nominated by the President and confirmed by the Senate, reflecting Montesquieu’s assertion in The Spirit of the Laws (1748) that liberty requires the separation of judicial power from legislative and executive functions, balanced by mutual accountability.
India’s constitutional framers, convening in 1946, drew from these traditions, crafting a document that envisioned a triadic equilibrium among the executive, legislature, and judiciary. Dr. B R Ambedkar, in the Constituent Assembly Debates, emphasized the judiciary’s role as a check on other branches, emphasizing its independence while cautioning against its detachment from democratic processes.
The collegium system, however, diverges from this vision, concentrating appointment authority within the judiciary itself, a practice distinct from major constitutional democracies such as the United States, the United Kingdom, or France, where external stakeholders contribute to judicial selection.
The historic NJAC Judgment
The 2016 NJAC judgment marks a critical juncture in this discourse.
The 99th Constitutional Amendment Act and the NJAC Act of 2014 sought to replace the collegium with a commission comprising the Chief Justice of India, two senior Supreme Court judges, the Union Law Minister, and two eminent persons selected by a panel including the Prime Minister, the Leader of the Opposition, and the CJI.
This framework, enacted with bipartisan legislative support and presidential assent, aimed to integrate judicial, executive, and civic perspectives into the appointment process, reflecting a pluralistic approach to constitutional governance.
Yet, in a 4-1 decision, the Supreme Court invalidated the NJAC, upholding the collegium on grounds that its primacy was essential to judicial independence, a component of the Constitutions basic structure.
The majority opinion, authored by Justices J S Khehar, M B Lokur, Kurian Joseph, and A K Goel, posited that the NJACs inclusion of non-judicial members risked compromising judicial autonomy, potentially exposing appointments to political influence.
While this position was articulated with clarity, it did not fully substantiate why judicial exclusivity in appointments is inherently superior to a collaborative model, relying instead on apprehensions of executive overreach without extensive empirical or comparative support.
Justice Jasti Chelameswar’s dissent offers a contrasting perspective, grounded in legal and philosophical principles. He argued that the NJAC did not undermine the basic structure but rather supported it by adopting a system of checks and balances.
He emphasized the need for clear separation of powers. He said that it is important to ensure no institution enjoys absolute power by drawing on the Constituent Assembly Debates. He further contended that the collegiums opaque and ad-hoc appointment process was inimical to judicial independence and public legitimacy, advocating for reform to enhance transparency and accountability.
He cited Thomas Babington Macaulay’s 1833 address to the House of Commons, Reform that you may preserve, to emphasize the urgency of adapting institutional mechanisms to maintain their integrity.
From Antiquity to Modernity
To fully appreciate this anomaly, one must situate it within the historical continuum of governance and accountability. In ancient Athens, Aristotle observed in Politics that the best constitution distributes power to prevent any single part from dominating, a warning against concentrated authority.
Cicero, in Romes De Re Publica, declared, the safety of the people is the highest law, tying justice to public trust, which falters when processes lack visibility. In Indian tradition, Kautilya’s Arthashastra (circa 300 BCE) advises that justice depends on the righteousness of officials, a principle contingent on their selection being transparent and credible.
In modernity, The Magna Carta of 1215, secured from King John by English barons, established an early principle that no authority stands above accountability, laying a foundation for checks on power. John Lockes Second Treatise of Government (1689) frames governance as a social contract, where legitimacy rests on the consent of the governed, a consent weakened when judicial appointments exclude public oversight.
Lord Acton’s 1887 maxim, power tends to corrupt and absolute power corrupts absolutely, highlights the collegiums risk, its insularity invites skepticism, even absent evidence of misconduct. The United States offers a contrasting model, where Supreme Court nominees face televised Senate hearings, a process James Madison defended in The Federalist Papers (No 51) quoting If men were angels no government would be necessary, hence the need for checks.
The Justice Varma Incident as a Lens
The fire at Justice Varma’s residence and the subsequent inquiry provide a lens for examining these systemic issues, not as a judgment on an individual, whose innocence remains presumed, but as a reflection on the collegiums structure.
The reports of currency, whether verified or not, amplify public unease about a system that offers little transparency in selecting judicial officers. Had a mechanism like the NJAC been in place, with its broader representation, such incidents might engender less suspicion. The collegiums internal inquiry, while a step toward accountability, highlights its self-contained nature, a limitation that external oversight could address.
Balancing Independence and Accountability
The NJAC, though imperfect, represented a balanced approach, blending judicial expertise with democratic input. Its rejection in 2016 was a missed opportunity, but its principles remain a viable framework for reform.
A revised NJAC could refine this model, ensuring judicial independence while introducing public vetting, such as parliamentary hearings modeled on the US Senate process, with safeguards against partisan influence.
Transparent criteria for merit and external oversight mechanisms could mitigate the collegiums opacity, aligning India with global norms while respecting its constitutional heritage.
The judiciary’s role as the Constitutions guardian, evident in various landmark cases related to fundamental rights and human rights are vital, yet its legitimacy depends on trust.
As Lord Hewart stated in R v Sussex Justices (1924), Justice must not only be done but must also be seen to be done. The collegium, a product of judicial evolution rather than constitutional design, falls short of this standard.
The Justice Varma incident, whatever its outcome, highlights the need for reform, not to condemn, but to preserve.
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