The mechanisms governing in India are currently under intense scrutiny, with retired jurists and legal experts questioning the efficacy and transparency of the existing processes. During a keynote address at a colloquium titled “Who will Judge the Judges,” organized by the , former Justice K Chandru of the voiced significant concerns regarding what he characterized as a “” occurring within the judiciary. His remarks shed light on the complex relationship between the executive branch and the judiciary, suggesting that the current appointment landscape has evolved into an informal, preference-based system rather than a transparent constitutional process.
Justice Chandru’s intervention centers on the perceived failure of both the executive and the judiciary to establish a durable, objective system for elevating judges. He pointed to the invalidation of the by the as a critical turning point. Following the of the commission, the opted against seeking legislative amendments that could have addressed the court's stated concerns. Instead, according to Justice Chandru, the administration has utilized an unwritten, behind-the-scenes negotiation process to influence the composition of the higher courts.
The Dynamics of Informal Appointments
The former judge argued that the current administration’s preference for the existing —despite its public criticisms—is rooted in the strategic leverage it provides the executive. By engaging in what he described as a “barter deal,” the government can exercise influence over appointments without the public oversight that an objective commission might necessitate. Justice Chandru observed, “In my book, I have mentioned that this system of collusion, which is done behind the scene which is more profitable than the system of NJAC which is uncertain because there'll be some objective assessment. People can see. Nothing is secret. Therefore Modi feels this secret barter is much more better.”
He emphasized that since , the turnover in the Supreme Court has provided the with a significant opportunity to reshape the bench. With the total strength of the at 37, Justice Chandru noted that the current executive has been involved in the appointment process for all incumbent judges, suggesting that the government has found a functional equilibrium that does not require further structural legislative changes. This state of affairs, he argued, undermines the institutional independence that the was theoretically designed to protect.
Patterns of Ideological Preference
A central pillar of Justice Chandru’s critique involves the emergence of what he terms the “saffronization” of the . He alleged the existence of an unwritten that effectively favors the appointment of individuals associated with specific ideological circles. According to the former judge, while lists featuring members of this group receive expedited clearance, the nominations of others are frequently stalled by the executive, regardless of the collegium’s reiteration of its recommendations.
He cited the contrast between the swift elevation of Justice Victoria Gowri, whose prior public commentary on minorities drew widespread attention, and the prolonged non-clearance of other recommended candidates. “Increasing saffronization. Every High Court there is a person belonging to that saffron group. How did it happen? Do they all represent a great number of cases or they are exceptionally brilliant? Today, I'm telling you there is an unwritten SOP that if you are a saffron member, your list will go through otherwise your list will get stalled, it'll continue to be stalled,” he stated. This disparity, he contends, creates a that compromises the perceived impartiality of the High Court benches across the country.
Rethinking Constitutional Recruitment Sources
Beyond the current political dynamics, Justice Chandru criticized the system’s narrow reliance on , arguing that it ignores the constitutional intent of incorporating diverse legal perspectives. The outlines multiple sources for , including the potential for elevating . However, the system has effectively bypassed this category in favor of career advancement pathways that favor direct judicial recruits or service law practitioners.
He contrasted the Indian approach with other jurisdictions, such as the United States, where academic jurists are frequently appointed to high judicial office. By excluding law professors and academics, the current system loses a critical layer of intellectual diversity and legal expertise. He noted, “The Constitution provides for several sources. One source is a jurist. Why have you never appointed a jurist? In America, they appoint a Harvard professor. In India, you don't appoint any law professor.”
The implications of these observations extend far beyond academic discourse, touching on the fundamental structural integrity of the Indian legal system. Justice Chandru urged the legal community to treat these appointment issues as matters of public concern rather than internal judicial administrative problems. He emphasized that without a permanent, objective solution that moves away from ad-hoc, discretionary methods, the judiciary risks deeper integration with executive agendas.
The current discourse highlights a persistent tension between the judiciary’s role as an independent watchdog and the executive’s capacity to shape through administrative delay and selection preference. As the debate continues, the legal community faces the challenge of identifying a framework that can satisfy constitutional requirements for transparency while addressing the practical realities of a strained appointment process. Whether these concerns will lead to a broader movement for procedural reform remains a matter of significant interest for legal practitioners and observers alike.
judicial appointment transparency - collegium system reform - executive-judiciary interaction - political influence in courts
