Judges’ Appointments in Past 12 Years Witnessed Unexplained Executive Interference: Justice S. Muralidhar

Introduction

The appointment of judges to the constitutional courts is not an ordinary administrative exercise. It goes to the very heart of the rule of law, separation of powers, and independence of the judiciary. Against this constitutional background, the recent observations of former Chief Justice of the Orissa High Court and former Delhi High Court Judge Justice S. Muralidhar deserve serious attention. Speaking at the 28th D.S. Borker Memorial Lecture on the theme of India’s Vision for 2047, Justice Muralidhar expressed strong reservations about the manner in which judges have been appointed during the past twelve years. He stated that the appointment process had witnessed “unexplained interference by the executive” and questioned whether the Collegium system, in its present form, has succeeded in achieving its fundamental objective of selecting the best available candidates for the higher judiciary. His criticism went beyond executive interference. He identified three interconnected problems:

• lack of transparency;
• vagueness regarding the criteria for selection; and
• inefficiency and delay in completing appointments.

These observations are particularly significant because the Collegium system itself emerged from the Supreme Court’s constitutional interpretation of Articles 124 and 217 and was designed, above all, to protect judicial independence from excessive executive influence. The question, therefore, is no longer merely whether the Collegium should exist. The more difficult constitutional question is: How can India preserve judicial independence while simultaneously making judicial appointments transparent, accountable, efficient, and capable of attracting the best legal talent?

Justice Muralidhar’s Central Criticism

Justice Muralidhar’s criticism is directed at the functioning of the judicial appointment process rather than simply at the existence of the Collegium. According to his assessment, although the Collegium system was introduced to give primacy to the judiciary in appointments, there is now a general concern that it has not fully achieved the objective of securing the best possible candidates. He further observed that the appointment process over the preceding twelve years had witnessed unexplained executive interference and that this problem was compounded by uncertainty about the criteria, lack of transparency, and inefficiency. This is a significant constitutional criticism. The objective of judicial appointments is not merely to fill vacancies. The objective is to ensure that persons of the highest ability, integrity, independence, and constitutional temperament occupy judicial office. A system that fills vacancies but fails to identify the best candidates cannot be considered completely successful.

Why Judicial Appointments Are Different from Ordinary Appointments

A government employee is ordinarily accountable within an administrative hierarchy. A constitutional court judge is different. A High Court or Supreme Court judge may be required to decide:

• whether government action is constitutional;
• whether executive detention is lawful;
• whether fundamental rights have been violated;
• whether legislation is constitutionally valid;
• whether governmental authorities have acted arbitrarily;
• whether citizens are entitled to compensation against the State; and
• whether executive or legislative action exceeds constitutional limits.

The judiciary therefore cannot function as an extension of the government. At the same time, judicial independence does not mean judicial isolation. A constitutional democracy requires institutional checks and balances. The executive has a legitimate role in the appointment process, including furnishing relevant information and raising legitimate objections. But that role cannot become a mechanism through which governments determine who will sit in judgment over governmental action. That is the constitutional tension underlying the present debate.

The Constitutional Foundation of the Collegium System

The Collegium system is not expressly written in the Constitution. It emerged through judicial interpretation, principally through what are popularly known as the Three Judges Cases. Article 124 deals with appointments to the Supreme Court, while Article 217 concerns appointments to the High Courts. The constitutional text uses the expression “consultation.” The Supreme Court, however, ultimately interpreted the appointment provisions in a manner that gave primacy to the institutional opinion of the judiciary. In the landmark Supreme Court Advocates-on-Record Association v. Union of India, reported in (1993) 4 SCC 441, commonly known as the Second Judges Case, the Supreme Court reconsidered the earlier position and held that the opinion of the Chief Justice of India, formed through consultation with senior judges, should have primacy in judicial appointments. The judgment laid the foundation of the Collegium system. The reasoning was fundamentally connected with judicial independence. If the executive had unrestricted authority to determine who would become a judge of the constitutional courts, the very institution responsible for scrutinizing executive action could potentially become dependent upon the executive for its composition. That constitutional concern remains at the center of the present debate.

The Third Judges Case and Institutionalization of the Collegium

The Collegium was subsequently clarified and expanded through the Special Reference No. 1 of 1998, commonly known as the Third Judges Case. The system evolved into an institutional process rather than leaving judicial appointments to the personal discretion of the Chief Justice of India. For appointments to the Supreme Court, the Collegium traditionally comprises the Chief Justice of India and the four senior-most judges of the Supreme Court. High Court appointments similarly begin with recommendations from the concerned High Court Collegium before consideration at the Supreme Court and governmental levels. The objective was clear: Judicial appointments should represent an institutional judicial assessment rather than the preference of a single individual.

The NJAC Experiment and the 2015 Constitutional Battle

The debate over the Collegium eventually resulted in Parliament attempting to replace it. The Constitution (Ninety-Ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, sought to establish the National Judicial Appointments Commission (NJAC). The proposed mechanism would have included representatives of the judiciary, the executive, and eminent persons. The constitutional challenge reached the Supreme Court. In Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1, a judgment dated 16 October 2015, a Constitution Bench by a majority declared the 99th Constitutional Amendment and the NJAC Act unconstitutional and void. The court restored the collegium system. The constitutional principle behind the decision was that judicial independence forms part of the basic structure of the Constitution and that judicial primacy in appointments is closely connected with that independence. But there was an important irony. While restoring the Collegium, the Supreme Court also recognized that the system required improvement. The Court therefore initiated consideration of measures to improve its functioning. This is where Justice Muralidhar’s present criticism becomes especially relevant.

Independence Without Transparency Creates Another Constitutional Problem

Judicial independence is indispensable. But independence cannot automatically mean absence of accountability. There is a legitimate public question concerning how candidates are evaluated.

Justice Muralidhar’s remarks directly engage with this concern. He pointed out that even the disclosure by the Supreme Court of a performance appraisal template for evaluating candidates represents only a partial movement towards transparency. According to his criticism, simply disclosing criteria does not answer the next question: whether candidates actually satisfy those criteria. That distinction is fundamental. Transparency does not merely mean publishing a form. Transparency means making the institutional decision-making process sufficiently understandable to generate public confidence while protecting legitimate confidentiality.

What Does “Executive Interference” Mean?

The expression “executive interference” is constitutionally serious. It should not, however, be understood to mean that every governmental objection is illegitimate. The executive is entitled to place relevant information before the Collegium. The government may raise concerns regarding suitability, antecedents, or public interest. The constitutional difficulty arises when the executive’s role moves from legitimate scrutiny into unexplained obstruction, indefinite delay, or selective interference with judicial recommendations. That distinction is crucial. The constitutional model is therefore neither “the executive should have no role whatsoever” nor “the executive should have the final word.” The constitutional balance requires an appointment mechanism in which the judiciary retains the primacy necessary for independence while the executive’s legitimate constitutional role is preserved.

The Problem of Unexplained Delays

Justice Muralidhar’s criticism also concerns the inefficiency of the appointment process. This problem is not theoretical. The retirement date of a serving High Court judge is known well in advance. Vacancies caused by retirement are therefore foreseeable. Yet the system frequently finds itself with vacancies that could have been anticipated months earlier. Justice Muralidhar observed that increasing the sanctioned strength of judges without simultaneously making the appointment process efficient can actually worsen the vacancy position. This is a powerful administrative observation. If a court is authorized to have 50 judges but only 35 are appointed, increasing the sanctioned strength to 60 does not automatically solve the problem. The number of unfilled positions may simply become larger. The real solution requires an appointment pipeline capable of anticipating vacancies and completing selections before the vacancy becomes operational.

The Supreme Court Has Already Recognized the Vacancy Crisis

The Supreme Court itself has previously expressed serious concern about vacancies. In M/s PLR Projects Pvt. Ltd. v. Mahanadi Coalfields Ltd. & Ors., Transfer Petition (Civil) No. 2419 of 2019, order dated 20 April 2021, the Supreme Court observed that the High Courts were facing a crisis situation, with substantial vacancies. The Court examined the appointment process under Articles 217 and 224 and the Memorandum of Procedure. It also emphasized that recommendations should be initiated sufficiently in advance because vacancies are foreseeable. The court prescribed additional timelines. Among other things, it indicated that:

• The Intelligence Bureau should ordinarily submit its inputs within four to six weeks;
• The Central Government should forward the files to the Supreme Court within the prescribed period after receiving relevant inputs;
• If the government had reservations, those reservations should be communicated with reasons; and
• Where the Supreme Court Collegium unanimously reiterated a recommendation, the appointment should ordinarily be processed within three to four weeks.

The Court expressly recognized that the process was collaborative and that promptness was necessary for the larger cause of timely justice. This decision is important when analyzing Justice Muralidhar’s criticism. The problem is therefore not simply philosophical. The Supreme Court has itself previously identified delays in the appointment process as a serious institutional problem.

Executive Delay Can Become a Judicial Capacity Problem

A vacancy in a constitutional court is not merely a vacant government post. One vacant judgeship means:

• fewer judicial hours;
• fewer benches;
• greater pressure on sitting judges;
• longer waiting periods for litigants;
• greater accumulation of arrears; and
• potentially increased cost and uncertainty for citizens.

The consequences ultimately reach ordinary litigants. A constitutional debate about judicial appointments may therefore appear remote from everyday life, but it has direct consequences for the citizen waiting for a bail application, matrimonial dispute, commercial appeal, service matter, land dispute, tax case, or constitutional challenge to be heard.

The Collegium’s Own Accountability Cannot Be Ignored

It would be incomplete, however, to place the entire responsibility upon the executive. Justice Muralidhar’s criticism also raises a deeper question about the Collegium itself.

If the Collegium claims institutional primacy because judges are best placed to assess future judges, then it must also demonstrate that its own process is capable of identifying merit consistently.

The criticism of opacity is not new. Lawyers have repeatedly questioned:

• the absence of clearly articulated selection criteria;
• inconsistent treatment of similarly situated candidates;
• lack of detailed reasons for some decisions;
• delays in reconsideration;
• modification of recommendations; and
• the absence of a fully institutionalized secretariat with a transparent administrative architecture.

The answer cannot simply be that the Collegium is constitutionally protected from executive influence. Constitutional protection from executive domination does not eliminate the obligation to maintain institutional credibility.

Judicial Independence Is Not Judicial Exclusivity

There is sometimes a tendency to present the debate as a binary choice: Collegium versus Executive. That is too simplistic.

The real issue is how to design a system that protects three values simultaneously:

Any system sacrificing one of these values is likely to produce another institutional problem.

The Danger of Political or Executive Preferences

The danger of excessive executive influence is particularly acute in constitutional litigation.

The government is the largest litigant before Indian courts. Government departments, public sector bodies, tax authorities, regulatory agencies, police authorities, and statutory bodies appear before the courts every day.

A judge may be called upon to decide whether the government acted illegally. For that reason, the judiciary cannot reasonably be dependent upon the government for judicial elevation.

The Second Judges Case was fundamentally concerned with this constitutional reality.

If a judge believes that his or her future career depends upon pleasing the executive, judicial independence is weakened even if no explicit instruction is ever given.

Constitutional institutions therefore must guard not only against actual interference but also against conditions capable of creating a reasonable perception of interference.

Perception of Independence Matters

In constitutional adjudication, public confidence is itself an institutional asset.

Justice must not merely be administered. Citizens must have reasonable confidence that judges can decide cases without fear or favor.

That is why unexplained interference is particularly damaging.

Even where an executive decision is legally permissible, unexplained patterns of delay or rejection can create a perception that judicial appointments are influenced by factors unrelated to merit.

Similarly, unexplained decisions within the Collegium can create the opposite perception—that appointments depend upon undisclosed personal or institutional preferences.

Both perceptions are damaging.

The S. Muralidhar Dimension

Justice Muralidhar’s observations inevitably carry additional weight because he himself has been a prominent constitutional judge whose career has been the subject of public discussion concerning judicial transfers and elevation.

His remarks therefore form part of a larger debate about how judicial independence is protected in practice.

That does not mean that every allegation of executive influence should automatically be treated as established fact. Nor should every decision of the Collegium be presumed to be politically motivated.

The correct constitutional approach is more disciplined: where serious institutional concerns are raised, the system should respond through greater transparency, objective procedures, and credible accountability mechanisms.

The answer to criticism should not be institutional defensiveness. It should be institutional reform.

Can the Collegium Be Reformed Without Destroying Judicial Independence?

In my considered view, yes.

There is no constitutional necessity to choose between an opaque Collegium and an executive-controlled appointments commission.

A reformed collegium can preserve judicial primacy while becoming significantly more transparent.

Some reforms deserve serious consideration.

1. Clearly Defined Selection Criteria

The judiciary should establish and periodically review publicly accessible criteria concerning:

• professional competence;
• integrity;
• quality and consistency of judgments;
• constitutional understanding;
• professional standing at the bar;
• disposition of cases;
• representation and diversity;
• judicial temperament; and
• capacity to handle complex constitutional and commercial litigation.

Such criteria should not become a mechanical checklist. Judicial appointment necessarily involves qualitative judgment.

But qualitative judgment can still operate within a transparent institutional framework.

2. Better Reasons for Collegium Decisions

The Collegium should disclose meaningful reasons wherever disclosure would not compromise legitimate confidentiality.

There is a difference between protecting confidential intelligence and withholding every explanation.

The public need not know sensitive personal information. But it should understand the broad institutional basis on which important appointments are made.

3. A Professional Permanent Secretariat

A professional judicial appointments secretariat could substantially improve the system.

It could maintain:

• service records;
• judicial performance data;
• professional profiles;
• integrity-related material;
• vacancy projections;
• retirement schedules; and
• status of recommendations.

This would reduce administrative delays and make the process less dependent upon ad hoc paperwork.

4. Advance Vacancy Planning

There should be an institutional mechanism under which foreseeable retirements trigger the appointment process sufficiently in advance.

There is little justification for treating a known retirement date as an unexpected event.

5. Time-Bound Governmental Processing

Where the executive has legitimate objections, those objections should be communicated promptly and with sufficient reasons to permit meaningful reconsideration.

Indefinite silence should not become an informal veto.

The Supreme Court’s 2021 directions in PLR Projects demonstrate that time-bound processing is already recognized as an important part of the appointment framework.

6. Transparent Status Tracking

Without disclosing sensitive material, the system could publicly indicate whether a recommendation is

• pending at the High Court level;
• pending before the Supreme Court Collegium;
• under consideration by the government;
• reiterated by the Collegium; or
• finally appointed.

This would significantly reduce speculation.

What About the Argument That the Collegium Is “Unelected”?

The criticism that judges are unelected is politically attractive but constitutionally incomplete.

Judicial independence necessarily means that judges are not directly accountable to electoral majorities in the same way as legislators.

A judge’s constitutional duty is not to follow public opinion or governmental preference.

The real question is therefore not whether judges are elected. The real question is whether the appointment mechanism produces independent, competent, and constitutionally trustworthy judges.

At the same time, the absence of electoral accountability makes internal transparency even more important.

If an institution exercises enormous constitutional power without electoral accountability, its procedures must inspire exceptional public confidence.

The Broader Problem: The State Is Also a Major Source of Litigation

Justice Muralidhar also connected judicial workload with governmental conduct.

He observed that governments themselves contribute substantially to litigation through administrative decisions, criminalization of ordinary democratic activity, arrests, and repeated appeals.

He further criticized the practice of governments continuing litigation through successive appellate levels even in relatively small-value matters.

This observation deserves attention.

Judicial reform cannot be confined to appointing more judges. There must also be reform in government litigation policy.

If the state automatically appeals every adverse order, the judiciary receives an enormous additional workload.

Consequently, reducing judicial arrears requires at least three simultaneous reforms:

The Real Test: Does the System Produce the Best Judges?

Ultimately, this should be the benchmark. Not: Who won the institutional battle? Not: Did the executive or judiciary exercise greater power? But did the process select the best person reasonably available for the judicial office? That is the question Justice Muralidhar’s intervention puts before the legal profession. The Constitution does not require the appointment of merely competent judges. The constitutional courts require judges capable of protecting fundamental rights, interpreting constitutional limitations, controlling arbitrary state action, and maintaining public confidence in the administration of justice.

Why This Debate Matters for India’s Constitutional Future

India is approaching the constitutional vision of 2047. During the next two decades, the judiciary will face unprecedented challenges involving:

• artificial intelligence;
• digital privacy;
• data governance;
• climate change;
• commercial regulation;
• federal disputes;
• constitutional rights;
• new forms of economic regulation;
• technology-driven crime; and
• rapidly changing social and political conditions.

The quality of India’s judiciary will therefore become increasingly important. The country cannot afford either a judiciary vulnerable to executive influence or an appointment system unable to attract and identify outstanding legal talent.

Conclusion

Justice S. Muralidhar’s recent criticism should not be reduced to another controversy between the judiciary and the executive. It raises a much larger constitutional question.

The Collegium was created principally because judicial independence required protection from executive dominance. The Supreme Court reaffirmed that constitutional principle when it struck down the NJAC in 2015.

But preserving judicial independence does not mean preserving every feature of the existing appointment process. The Collegium must continuously improve itself. Its legitimacy ultimately depends not merely upon constitutional doctrine but upon the quality of judges it produces and the confidence that lawyers and citizens place in the process.

Similarly, the executive has a legitimate role in the constitutional process, but that role must not become an unexplained instrument for delaying, modifying, or obstructing judicial appointments.

The way forward, therefore, should not be a return to executive supremacy. Nor should it be an unquestionable acceptance of the status quo.

India needs a judicial appointments system that combines judicial independence with transparency, merit, efficiency, and institutional accountability.

Justice Muralidhar’s intervention is valuable precisely because it forces the legal community to confront an uncomfortable but necessary question:

If judicial independence is the foundation of the Collegium, can the Collegium itself remain credible unless its decision-making process is sufficiently transparent to demonstrate that it is actually selecting the best possible judges?

That question deserves a serious constitutional answer—not a political one.

Important Legal Authorities and Citations

• Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441—Second Judges Case; foundational decision establishing judicial primacy and the Collegium system.
• Special Reference No. 1 of 1998, (1998) 7 SCC 739—Third Judges Case; clarified the composition and functioning of the Collegium.
• Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1—Fourth Judges Case; the 99th Constitutional Amendment and NJAC Act were declared unconstitutional, and the Collegium system was restored.
• M/s PLR Projects Pvt. Ltd. v. Mahanadi Coalfields Ltd. & Ors., 2021 SCC OnLine SC 332, order dated 20 April 2021—The Supreme Court addressed delays and prescribed additional timelines for judicial appointments.
• Justice S. Muralidhar, 28th D.S. Borker Memorial Lecture—recent observations concerning executive interference, Collegium transparency, criteria, and efficiency in judicial appointments.

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Frequently Asked Questions

1. What Did Justice S. Muralidhar Say About Executive Interference In Judges’ Appointments?

Justice S. Muralidhar criticized the judicial appointment process, stating that judges’ appointments over the past 12 years witnessed unexplained executive interference. He also raised concerns about transparency, selection criteria, and delays in judicial appointments.

2. What Is The Collegium System For Appointment Of Judges In India?

The Collegium System is the mechanism through which senior judges of the Supreme Court and High Courts recommend appointments and transfers of judges. It evolved through the Second Judges Case (1993) and Third Judges Case (1998) and is closely connected with the constitutional principle of judicial independence.

3. Why Is Judicial Independence Important In The Appointment Of Supreme Court And High Court Judges?

Judicial independence ensures that judges can decide cases without fear, favor, or executive pressure. Since governments are major litigants before constitutional courts, an appointment process vulnerable to excessive executive influence could undermine public confidence in the independence of the judiciary and rule of law.

4. Can The Collegium System Be Reformed To Make Judicial Appointments More Transparent?

Yes. The Collegium System can be strengthened through greater transparency, clearly defined selection criteria, a professional appointments secretariat, advance vacancy planning, time-bound processing, and meaningful disclosure of reasons, while still preserving judicial primacy and independence.

5. What Are The Important Supreme Court Cases On Judicial Appointments And The Collegium System?

The leading cases include Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 (Second Judges Case); Special Reference No. 1 of 1998, (1998) 7 SCC 739 (Third Judges Case); and Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1 (NJAC/Fourth Judges Case). These decisions form the principal constitutional jurisprudence governing judicial appointments and the Collegium System in India.

Key Takeaways: Judicial Appointments, Collegium System & Executive Interference

• Justice S. Muralidhar criticized the process of judges’ appointments in India, alleging unexplained executive interference during the past 12 years.
• The remarks highlight concerns about the Collegium System, particularly its ability to identify and appoint the best candidates for the higher judiciary.
• Judicial independence is at the center of the debate because judges of the Supreme Court and High Courts frequently adjudicate disputes involving government authorities.
• The Collegium System evolved through the Second Judges Case (1993) and Third Judges Case (1998) and gives the judiciary primacy in recommending appointments to constitutional courts.
• In the NJAC Case, (2016) 5 SCC 1, the Supreme Court struck down the National Judicial Appointments Commission (NJAC) and reaffirmed the constitutional importance of judicial independence.
• The article identifies lack of transparency as a major concern in the present judicial appointments process, including uncertainty regarding the criteria used to evaluate potential judges.
• Executive interference should be distinguished from legitimate governmental scrutiny. The executive may raise relevant concerns, but unexplained delays or obstruction can raise serious constitutional concerns.
• Delay in judicial appointments contributes directly to the growing number of judicial vacancies, increasing the workload of sitting judges and contributing to case backlogs.
• The Supreme Court in M/s PLR Projects Pvt. Ltd. v. Mahanadi Coalfields Ltd., 2021 SCC OnLine SC 332, recognized the importance of timely processing of judicial appointments.
• Increasing sanctioned judicial strength alone cannot solve judicial vacancies. A more efficient and time-bound judicial appointment mechanism is also necessary.
• The Collegium System requires institutional reform, including clearer selection criteria, greater transparency, better record-keeping, advance vacancy planning, and a professional appointments secretariat.
• Judicial independence and transparency are not mutually exclusive. Protecting confidential information does not require keeping the entire appointment process opaque.
• The central question is not simply whether the Collegium or executive should have more power, but whether the appointment process consistently selects competent, independent, and constitutionally suitable judges.
• The quality of judicial appointments will have long-term consequences for constitutional governance, fundamental rights, the rule of law, and public confidence in the Indian judiciary.

Summary

Justice S. Muralidhar’s criticism of unexplained executive interference in judicial appointments has renewed the debate over Collegium transparency, judicial independence, merit-based selection, and reforms to India’s higher judiciary appointment system.

This article is intended for legal education and public discussion. It analyses Justice S. Muralidhar’s recent public observations and the constitutional jurisprudence surrounding judicial appointments. It should not be read as attributing any particular motive to an individual constitutional authority without independent evidence.

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