What are the main issues in the appointment of judges in High Courts and Supreme Court ? Discuss the views of Government of India and Apex Court in this regard.

Introduction: The mechanism for appointment of judges to the Supreme Court (Article 124) and High Courts (Article 217) has been one of the most fiercely debated constitutional questions in India, revolving around the delicate balance between Judicial Independence and Democratic Executive Accountability.

1. Evolution of the Appointment Mechanism (Three Judges Cases):

• First Judges Case (S.P. Gupta, 1981): Supreme Court held that "Consultation" does not mean "Concurrence"; Executive held ultimate primacy.
• Second Judges Case (1993): SC reversed its stand, ruling that "Consultation" means "Concurrence", birthing the Collegium System where the Chief Justice of India (CJI) and two senior-most SC judges hold primacy.
• Third Judges Case (1998): Expanded the Supreme Court Collegium to CJI + 4 senior-most SC judges for SC appointments, and CJI + 2 senior-most judges for High Court appointments.

2. Main Issues and Dilemmas in Judicial Appointments:

• Lack of Transparency & Opacity: Collegium deliberations occur behind closed doors without published criteria, objective scoring, or publicly known shortlists (criticized as "judges appointing judges").
• Allegations of Nepotism & Favoritism: Perceived preference for relatives or former juniors of senior judges over merit.
• Massive Judicial Vacancies & Pendency: Interminable delays and bureaucratic friction between the Collegium and the Law Ministry over approvals causing high vacancy rates in High Courts (~30–35%).
• Memorandum of Procedure (MoP) Deadlock: Deadlock since 2016 between the Executive and Judiciary over finalizing the revised MoP (including a national security screening clause).

3. Stand of the Government of India vs. Apex Court:

• Government of India's Perspective:
  • Advocated institutional executive participation to ensure democratic accountability and broad-based selection.
  • Enacted the 99th Constitutional Amendment Act & NJAC Act, 2014 to replace the Collegium with a 6-member National Judicial Appointments Commission (CJI, 2 senior judges, Law Minister, 2 eminent persons).
• Supreme Court's Perspective (NJAC Verdict, 2015):
  • In the Fourth Judges Case (2015), a 5-judge Constitution Bench struck down the NJAC Act as unconstitutional by a 4:1 majority, declaring that Judicial Primacy in appointments is an inviolable part of the Basic Structure of the Constitution.

Conclusion: To resolve this institutional tug-of-war, the Collegium system must introduce structured transparency (institutional search-cum-evaluation committees, objective merit criteria, public vacancy disclosures) while preserving judicial independence from executive dominance.