Five Senior Judges Recommend Who Joins India's Supreme Court, a System Built by Rulings of 1993 and 1998 and Kept When a Judicial Appointments Commission Was Struck Down 4 to 1 on 16 October 2015

India’s judges are appointed by the President, but the names come from judges. For the Supreme Court, the Chief Justice of India and the four most senior judges after him, a body called the collegium, recommend each name. The Court’s website lists the latest statement, dated 28 September 2026, in which the collegium recommended three High Court Chief Justices for elevation to the Supreme Court.

What Articles 124 and 217 say

Article 124(2) says the President appoints each Supreme Court judge by warrant, a written order under his hand and seal, after consultation with such judges of the Supreme Court and the High Courts as the President thinks necessary. A proviso adds that “the Chief Justice of India shall always be consulted” for every appointment other than his own. Judges hold office until 65. A candidate must be a citizen who has served five years as a High Court judge or ten as a High Court advocate, or who is, in the President’s opinion, a distinguished jurist.

Article 217 covers the 25 High Courts. In the form revived by the 2015 judgment, the President appoints after consultation with the Chief Justice of India, the Governor of the state and, for any judge other than the Chief Justice, the Chief Justice of the High Court. High Court judges retire at 62 and need ten years as a judicial officer or as an advocate. Under the Memorandum the Prime Minister advises the President on each name, a step covered in our piece on how the President and the Prime Minister work together.

Why the Constituent Assembly chose “consultation”

The draft of what became Article 124 was debated on 24 May 1949. Members proposed three alternatives: appointment with the concurrence of the Chief Justice, confirmation by a two-thirds vote of Parliament, or consultation with the Council of States. B. R. Ambedkar, speaking for the Drafting Committee, rejected all three. Leaving appointments to the executive of the day was dangerous, he said, and tying each one to the legislature’s concurrence was no better. On the Chief Justice he said that to allow him “practically a veto upon the appointment of judges” would hand over an authority the Assembly would not give the President or the Government. The draft, in his words, “steers a middle course.”

Each side read that speech its own way in 2015. The Attorney General told the Court that the Assembly feared judges alone choosing judges, a system described in the debates as an imperium in imperio, a state within a state, and argued that the rulings after 1993 had created exactly that. The five-judge bench read the speech as showing that the executive’s free will was to be curbed, so that “consultation” had to mean more than its dictionary sense, and that the Chief Justice was not given a veto either. It held that the process is a joint exercise in which the executive has a real role.

Three rulings that built the collegium

The Constitution does not mention a collegium. It came from three Supreme Court decisions, known as the Judges Cases.

In the First Judges Case, decided on 30 December 1981 by seven judges, a majority of four to three held that “consultation” did not mean “concurrence”. As Justice Madan Lokur summarised it in 2015, the majority opinion of Justice P. N. Bhagwati held that when the officials consulted disagreed, the Union government decided whose view to accept, and that the Chief Justice’s opinion had no primacy.

A three-judge bench in the Subhash Sharma case then found that the Union government had been reopening recommendations the Chief Justice had already cleared, and sent the question to a larger bench. On 6 October 1993 nine judges, by seven to two, overruled the 1981 majority in the Second Judges Case. Justice J. S. Verma wrote for himself and four others, Justice A. M. Ahmadi dissented and Justice M. M. Punchhi wrote separately. The majority held that the Chief Justice’s opinion, formed collectively with the senior judges he consults, has primacy in appointments to both courts. The executive could decline a recommended name only on positive material about unsuitability, disclosed to the Chief Justice. If the Chief Justice reiterated the name with the unanimous agreement of the judges consulted, the majority said, the appointment ought to be made as a matter of “healthy convention”.

Doubts about that ruling led the then President, K. R. Narayanan, to put nine questions to the Court under Article 143 on 23 July 1998. A nine-judge bench answered unanimously on 28 October 1998, in an opinion by Justice S. P. Bharucha. Appointments to the Supreme Court, and transfers of High Court judges, need the Chief Justice to consult the four most senior puisne judges, meaning judges other than the Chief Justice. For a High Court appointment he consults the two most senior judges of the Supreme Court. Each opinion must be in writing and sent to the Government, and the Chief Justice’s sole opinion does not count as consultation. A person opposed by a majority of the collegium cannot be appointed, and the bench added that if even two members voiced strong adverse views it expected the Chief Justice not to press the name.

How a High Court judge is chosen, step by step

The working manual is the Memorandum of Procedure. The 2015 judgment dates the Law Ministry’s version to 30 June 1999, while Department of Justice replies to Parliament describe it as prepared in 1998. For a High Court appointment, the Supreme Court set out its steps in 2015:

1. The Chief Justice of the High Court, after written consultation with the two senior-most judges of that court, sends names to the state’s Chief Minister. The Memorandum asks for this at least six months before a vacancy. The Department of Justice told the Lok Sabha on 31 July 2026 that this limit “is rarely observed”.
2. The Chief Minister and the Governor give their views. Under the clause the Court quoted in 2021, the Centre may presume no objection if the state is silent for six weeks.
3. The Union Law Minister examines the file with such reports as the Government holds, including an Intelligence Bureau report on each name, obtained through the Home Ministry.
4. The file goes to the Chief Justice of India, who, with the Supreme Court collegium, consults in writing the Supreme Court judges who know the High Court concerned.
5. The recommendation goes back to the Law Minister and on to the Prime Minister, who advises the President.

At the end the Government may return a name with its reasons. If the collegium unanimously reiterates it, the Supreme Court said on 20 April 2021 that the appointment should follow within three to four weeks. The same order called it “desirable” for the Centre to forward files within eight to twelve weeks, and asked the Intelligence Bureau for its report within four to six weeks.

One of the earliest entries on the Court’s collegium page shows the steps at work. On 3 October 2017 the collegium took up six judicial officers for the Madras High Court. Their names had been recommended on 23 January 2017 by that court’s then Chief Justice with his two senior-most colleagues, and the Chief Minister and Governor of Tamil Nadu had concurred. The collegium wrote that it had consulted colleagues who knew the Madras High Court and attached their letters.

The same day a collegium of five judges resolved that its decisions, with reasons, would go on the Court’s website when recommendations reach the Government, “to ensure transparency and yet maintain confidentiality”. The page lists statements through 28 September 2026.

Four bills for a commission, and the one that passed in 2014

The Law Commission’s 121st Report of 31 July 1987 said the existing arrangement had “failed to deliver the goods” and proposed an eleven-member National Judicial Service Commission. Four constitutional amendment bills followed, as the 2015 judgment records them. The 67th Amendment Bill, introduced on 18 May 1990, lapsed when the Lok Sabha was dissolved in May 1991. The National Commission to Review the Working of the Constitution reported on 31 March 2002 and recommended a National Judicial Commission. The 98th Amendment Bill, introduced on 8 May 2003, lapsed when the Lok Sabha was dissolved in March 2004. The 120th Amendment Bill passed the Rajya Sabha on 5 September 2013 and lapsed with the Lok Sabha’s dissolution in May 2014.

The fourth, the 121st Amendment Bill of 2014, passed. The Lok Sabha approved it on 13 August 2014 with 367 votes in favour and none against, and 37 members abstained. The Rajya Sabha followed on 14 August with 179 in favour and one member abstaining. The Additional Solicitor General told the Court that 28 state assemblies ratified it, under the amendment procedure of Article 368. The President signed it on 31 December 2014 and it came into force on 13 April 2015, together with the National Judicial Appointments Commission Act.

The Statement of Objects and Reasons, dated 8 August 2014, said a broad-based commission would give the judiciary, the executive and eminent persons a role and would ensure “greater transparency, accountability and objectivity”. The Act also provided that the commission would not recommend a name if any two of its six members disagreed. Petitioners called that a veto. The Union argued it was a special majority of the kind the Constitution itself uses.

The 16 October 2015 verdict and what followed

A five-judge bench led by Justice J. S. Khehar declared the amendment and the Act void by four to one. The operative order also refused to refer the 1993 and 1998 rulings to a larger bench, declared the pre-2014 collegium system “operative”, and listed a hearing for 3 November 2015 on measures to improve how it works. The majority’s reasoning and Justice J. Chelameswar’s dissent are set out in our article on the basic structure doctrine.

Judges on both sides of the 4 to 1 split criticised the collegium itself. Justice Kurian Joseph, in the majority, agreed that it “lacks transparency, accountability and objectivity”. Justice Chelameswar wrote that its records were “absolutely beyond the reach of any person including the judges of this Court” who do not become Chief Justice.

The Court also recorded the Attorney General’s concession that the supersession of senior judges when the Chief Justice was chosen in 1973, the mass transfer of judges in 1976 during the Emergency, and a second supersession in 1977 had weakened judicial independence. According to the petitioners’ account in the judgment, Justice A. N. Ray was appointed in April 1973 over Justice J. M. Shelat, Justice K. S. Hegde and Justice A. N. Grover, and in January 1977 Justice M. H. Beg was appointed over Justice H. R. Khanna.

On 16 December 2015 a Constitution Bench directed the Government to draft a new Memorandum of Procedure. LiveLaw reported on 26 March 2017 that the collegium’s last meeting on the draft, on 10 March 2017, rejected the Centre’s proposal to let it decline a name on national security grounds, saying the Government could not be given a “virtual veto”, and agreed to an age band of 45 to 55 for advocates named to High Courts. On 28 October 2017 a bench of Justices A. K. Goel and U. U. Lalit noted that no time limit had been fixed for finalising the Memorandum but said the issue “cannot linger on for indefinite period”. The Department of Justice’s reply of 31 July 2026 still describes the procedure as the Memorandum prepared in 1998.

The numbers in 2026

The Supreme Court (Number of Judges) Amendment Act, 2026 received the President’s assent on 11 August 2026 and is deemed in force from 16 May 2026. It raises the number of judges besides the Chief Justice from thirty-three to thirty-seven. With the Chief Justice that makes 38, against 34 on the Department of Justice’s table of 19 July 2024.

For the High Courts, the Supreme Court recorded on 20 April 2021 the Attorney General’s figures of 1,080 sanctioned posts, 664 judges and 416 vacancies. The Department of Justice reported 1,114 sanctioned posts, 757 judges at work and 357 vacancies on 19 July 2024, and said that recommendations were still awaited from High Court collegiums for 138 vacancies. ThePrint reported on 29 July 2026, from Law Ministry data given to the Rajya Sabha on 23 July, 1,122 sanctioned posts, 781 judges and 341 vacancies as on 1 July 2026. The Department of Justice told the Lok Sabha on 31 July 2026 that 608 judges had been appointed to the High Courts in the previous five years.