India's judiciary: appointments, pendency and reform

The question that never closes: who appoints judges

Every dispute about the Indian judiciary’s independence ultimately returns to a single question — who chooses its judges. In India the answer is the courts themselves. Appointments to the Supreme Court and the High Courts are decided by the collegium, a body of the senior-most judges headed by the Chief Justice of India, whose recommendations the executive can delay or return once but cannot, by convention, ultimately refuse. This makes India, as the reference record on the NJAC notes, one of the very few democracies where the higher judiciary effectively selects its own members. The collegium is not written into the Constitution; it is a construct of Supreme Court judgments, which is precisely why its legitimacy is perennially contested.

The collegium, in three judgments

The system was built in three steps, all of them interpretations of the word “consultation” in Articles 124 and 217 of the Constitution. In the First Judges Case (1981) the Court read consultation as leaving the last word with the executive. In the Second Judges Case (1993) it reversed itself, holding that “consultation” with the Chief Justice means concurrence, and inventing the collegium to give the judiciary primacy. The Third Judges Case (1998), a Presidential Reference, fixed the collegium’s membership: Supreme Court appointments are settled by the CJI plus the four senior-most judges, and High Court appointments by the CJI plus the two senior-most judges — the structure set out in the reference record. That framework has governed appointments ever since.

NJAC: Parliament’s challenge, and its defeat

In August 2014 Parliament tried to end the collegium. The 99th Constitutional Amendment and the National Judicial Appointments Commission Act, 2014 were passed near-unanimously by both Houses and would have replaced the collegium with a six-member commission — the CJI, two senior judges, the Union Law Minister, and two “eminent persons” chosen by a panel of the CJI, the Prime Minister and the Leader of the Opposition, per the reference record. On 16 October 2015, in the Fourth Judges Case (Supreme Court Advocates-on-Record Association v. Union of India), a Constitution Bench struck the NJAC down by 4:1, holding that giving the executive a role in appointments violated the basic structure — the independence of the judiciary — with the lone dissent warning that the collegium was itself opaque. The collegium was restored, and no legislative replacement has been enacted since.

The unfinished rulebook: the Memorandum of Procedure

The 2015 judgment did not end there. In a supplementary order the Court invited the government to revise the Memorandum of Procedure (MoP) — the document that governs how the collegium and the executive actually process an appointment — “in consultation with the Chief Justice of India”. More than a decade later that revision remains unfinalised. Reporting on the tussle, including ThePrint’s explainer on the Memorandum of Procedure, records a standing deadlock over the terms: the government has pressed for provisions such as a “national security” ground on which a recommended name could be returned, the Parliamentary Standing Committee on law and justice warned that such clauses could amount to a government veto over appointments, and the collegium rejected the contested clauses and held that the existing MoP was final. Because a revised MoP was never settled, the collegium continues to operate under the pre-2015 memorandum, and each contested appointment is negotiated against an unfinished rulebook.

The backlog: the numbers

Running alongside the appointments contest is a pendency crisis. Across all three tiers — the Supreme Court, the High Courts and the district and subordinate courts — more than 5.6 crore (over 56 million) cases are pending, the great majority of them in the district and subordinate courts, per the reference tally on pendency (which cites the National Judicial Data Grid) and the consolidated figures published on the government’s National Judicial Data Grid. At the apex, pendency has hit records: the Supreme Court Observer’s docket tracker recorded 93,143 cases pending at the end of March 2026, described as the highest the Court has seen in three decades. PRS Legislative Research ties the backlog to judicial vacancies — High Court judgeships have run close to a third vacant in recent years — so the appointments question and the pendency question are two faces of one problem.

The 2026 expansion: 34 to 38

The most concrete institutional response of 2026 was to enlarge the apex court. The Union Cabinet cleared the Supreme Court (Number of Judges) Amendment Bill, 2026 in early May, and an Ordinance raising the sanctioned strength from 34 to 38 judges was notified in the Gazette on 16 May 2026 — the first change to the Court’s size since 2019, framed explicitly around the record backlog. The Cabinet’s clearance was reported as adding four puisne judges to improve disposal. The expansion means the collegium — headed by the current Chief Justice of India and, as of June 2026, comprising the CJI and the four next senior-most judges — has more seats to fill, which places the appointments machinery back at the centre of the Court’s current work.

The accountability flashpoint

The collegium’s critics have long argued it is opaque and unaccountable, and a 2025 controversy over the discovery of cash at a High Court judge’s official residence — which triggered an in-house inquiry — reignited that argument, as ThePrint documented. It revived open calls from within the executive to bring back a commission on NJAC lines: the office of the Vice President, in early 2025, publicly described the NJAC as “a visionary step endorsed by Parliament” and questioned the collegium, per the same reporting. The judiciary’s position, reflected in the 2015 majority and reasserted since, is that its primacy in appointments is part of the basic structure and cannot be surrendered to the executive.

The range of positions, attributed

The contest is genuinely three-cornered, and the brief characterises the actual positions rather than adjudicating between them:

• The judiciary’s position. Judicial primacy in appointments is a facet of independence and part of the Constitution’s basic structure; this is the ratio of the 2015 Fourth Judges majority recorded in the NJAC case reference.
• The executive’s position. No institution should select its own members without external checks; the NJAC was a democratically enacted reform, and provisions such as a national-security ground and greater transparency belong in the appointments process — the view associated with the office of the Vice President and the Union executive, per ThePrint.
• The internal-critique position. Even judges in the 2015 majority have since acknowledged the collegium’s opacity; the recurring argument here is that the collegium needs a written, transparent procedure — the still-unfinalised MoP — rather than abolition, a strand also traced in ThePrint’s account.

This is, throughout, a domestic constitutional argument — a contest between the executive and the judiciary over the boundary between accountability and independence — with none of the domestic-versus-foreign framing divergence that marks India’s geopolitical files.

Who owns this topic (and why we’re here)

A search for “collegium vs NJAC” or “Supreme Court case pendency” today surfaces two layers and a gap. The primary layer — the Supreme Court site, the Department of Justice NJDG and PRS vital statistics — carries authoritative numbers but no narrative. The exam-prep and explainer layer explains the collegium-vs-NJAC history cleanly for aspirants but is static, undated on the live dispute, and thinly sourced. What is missing is a single maintained, provenance-intact state-of-play that ties the three judgments, the NJAC defeat, the deadlocked MoP, the pendency numbers and the 2026 expansion into one thread. That is the gap this brief fills, anchored to a structured Judiciary of India dossier and read alongside the Election Commission as the two institutions whose independence is contested through their appointment machinery.

Maintained topic brief. Analysis by IndiaStand — it characterises the state of play and the range of positions actually held, attributes each claim, and makes no forecast and no recommendation.