Revision summary
First Judges Case gave the executive primacy; Second and Third Judges Cases created the collegium of the CJI and senior colleagues. NJAC (99th Amendment) was struck down in 2015; the collegium returned, still criticised for opacity and delay. The US President nominates Supreme Court Justices; the Senate confirms; tenure is effectively for life. India’s gain is insulation from a sudden majority; its cost is unexplained selection. America’s gain is public democratic input; its cost is partisan life tenure.
Model answer
Introduction
Who picks the constitutional court is who shapes the Constitution in practice. India moved from an executive-led system to a judicial collegium by interpretation. The United States still uses a President who nominates and a Senate that confirms. Each design solves one fear and creates another.
Body
Evolution in India
Article 124 says the President appoints Supreme Court judges after consultation with the Chief Justice and such other judges as needed. First Judges Case (S.P. Gupta, 1981) read consultation as not concurrence; the executive had primacy. Second Judges Case (1993) reversed that: concurrence of the CJI, formed through a collegium, became the working rule. Third Judges Case (1998), an advisory opinion, expanded the collegium to the CJI plus four senior-most colleagues for the Supreme Court (and a smaller collegium for High Courts). Memoranda of Procedure tried to write the convention down.
The 99th Amendment and NJAC Act, 2014, put a commission of judges, the Law Minister and eminent persons in the room. Supreme Court Advocates-on-Record Association (2015) struck it down as injuring independence. We are back to the collegium, with periodic political frost over names, transfers, and the Law Ministry’s returned files. In-house opacity, delays, and the absence of a published reason remain the system’s daily face.
The United States
- Article II: the President nominates, the Senate advises and consents. Hearings are public, partisan and often brutal. Tenure is during good behaviour — effectively life. Vacancies are political events (Bork, Thomas, Garland blocked, Barrett). Ideology is named, not whispered. Impeachment of a Justice is possible and almost unused.
Trade-offs
Indian collegium — advantages: distance from a momentary parliamentary majority; continuity of legal craft; harder for a Prime Minister to pack the Court in one season. Disadvantages: unwritten criteria, alleged uncle-judge networks, poor diversity of social origin, no public hearing, running conflict with the elected executive, delays that leave High Courts empty.
US system — advantages: democratic pedigree, public record, a President accountable at the next election for a choice. Disadvantages: polarisation, a Court that tracks the last two election cycles, life tenure that outlasts the coalition that chose the judge, and confirmation as television.
Neither system is “more constitutional” in the abstract. India feared Mrs Gandhi’s court. America fears an unaccountable priestly bench and chose party combat instead. A reform that kept judicial majority in selection, added a public shortlist, a written criterion, and a timeline would take the better half of both — which is what NJAC claimed and failed to design to the Court’s satisfaction.
For the Supreme Court of India the live comparison is not glamour; it is whether a name can be explained to the Bar without a leak.
Flow diagram
flowchart TD I[Art 124 consultation] --> F[First Judges executive] F --> S[Second Third collegium] S --> N[NJAC struck 2015] U[US President] --> SE[Senate confirmation]
Conclusion
The collegium is judge-made primacy after three Judges cases and the fall of NJAC. The US system is presidential nomination plus Senate. One hides politics inside the profession; the other stages politics in a hearing. Both need limits: reasons and diversity here, less tribal confirmation there.
Quick related
Students also ask
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Explain the reasons for the growth of public interest litigation in India. As a result of it, has the Indian Supreme Court emerged as the world's most powerful judiciary ?
Next question on this syllabus topic (2024 · Q14). View answer →
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Did the Constitution mention the collegium?
No. The word is judicial gloss on ‘consultation’ in Articles 124 and 217.
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Would copying Senate hearings work in India?
Open hearings without a partisan Senate could still improve reasons. Copying US party combat would sit poorly with a parliamentary executive that already controls the Rajya Sabha calendar.
PYQ trend
When UPSC asked this
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2025 · Q11 · GS II · 15 marks
"Constitutional morality is the fulcrum which acts as an essential check upon the high functionaries and citizens alike…"In view of the above observation of the Supreme Court, explain the concept of constitutional morality and its application to ensure balance between judicial independence and judicial accountability in India. -
2024 · Q14 · GS II · 15 marks
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Q11 · UPSC Mains 2025 · GS II · 15 marks
"Constitutional morality is the fulcrum which acts as an essential check upon the high functionaries and citizens alike…"In view of the above observation of the Supreme Court, explain the concept of constitutional morality and its application to ensure balance between judicial independence and judicial accountability in India.
Executive and Judiciary
Ambedkar treated constitutional morality as cultivated respect for constitutional forms in an unequal society. The Court has used it in Manoj Narula, NCT of Delhi, Navtej Johar and Sabarimala as process plus dignity against convenience. It checks both high office and majoritarian citizens. Judicial independence (tenure, collegium, basic structure) is one application; accountability (impeachment, in-house, Veeraswami, open reasons) is the other. NJAC 2015 protected independence; unexplained collegium power still fails the same morality if it will not give reasons.
Q14 · UPSC Mains 2024 · GS II · 15 marks
Explain the reasons for the growth of public interest litigation in India. As a result of it, has the Indian Supreme Court emerged as the world's most powerful judiciary ?
Executive and Judiciary
Public interest litigation grew because the Court stopped insisting that only a personally injured plaintiff could knock. Hussainara Khatoon read speedy trial into Article 21 for Bihar undertrials. S.P. Gupta opened standing; Bandhua Mukti Morcha let a voluntary body sue for bonded labourers. A letter could be treated as a writ; continuing mandamus kept administrations under watch. The Court is unusually interventionist on appointments and social rights. It is not the world’s most powerful if power means being always obeyed. Frivolous PIL should shrink; voiceless litigants have not vanished because GDP rose.
Q1 · UPSC Mains 2022 · GS II · 10 marks
"The most significant achievement of modern law in India is the constitutionalization of environmental problems by the Supreme Court." Discuss this statement with the help of relevant case laws.
Executive and Judiciary
Environmental harm in India was brought under Articles 21, 48A and 51A(g) by the Supreme Court, not only under pollution statutes. M.C. Mehta (Oleum gas) imposed absolute liability on hazardous industry and a capacity-based measure of damages. Vellore Citizens’ Welfare Forum (1996) adopted the precautionary principle, polluter pays, and sustainable development as Indian environmental law. PIL under Article 32 made those holdings usable against public authorities and factories. The achievement is doctrinal and remedial; boards and municipalities still decide whether the right is real on the ground.
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