A popular criticism of the Indian collegium system is that India is the only country in the world where “judges appoint judges.” The statement is rhetorically powerful but factually incorrect.

India’s collegium system is certainly unusual. It was not created by a constitutional amendment or by a detailed parliamentary statute. It emerged from Supreme Court judgments interpreting Articles 124 and 217 of the Constitution. It gives strong primacy to the senior judiciary in appointments to the Supreme Court and High Courts.

But unusual does not mean unique. Several constitutional democracies give judges, judicial councils or constitutionally protected judicial bodies a decisive or veto-like role in judicial appointments, promotions, transfers, discipline and career management. Italy, France, Croatia, Greece, Portugal, Romania and Slovenia are examples of systems where judicial institutions play a major role in the appointment and career of judges.

Therefore, the real question is not whether India is the only country where judges have primacy. The better question is whether judicial primacy is a legitimate method of protecting judicial independence.

To answer that, one must go beyond slogans and return to a foundational idea of constitutional theory: the judiciary has neither the purse nor the sword. It has only judgment.

The Judiciary Has Neither the Purse Nor the Sword

The classic explanation of judicial independence comes from Alexander Hamilton’s Federalist No. 78, written in 1788.

Hamilton described the judiciary as the “least dangerous” branch because it does not control the army, police, taxation, public spending or legislation. The executive holds the sword. The legislature commands the purse. The judiciary, by contrast, has neither force nor will, but merely judgment.

This idea is central to the constitutional logic of judicial independence. A court does not command soldiers. It does not collect taxes. It does not pass budgets. It does not control the administrative machinery of the State. Even after delivering a judgment, the judiciary often depends on the executive for enforcement.

That is why judicial independence is not a privilege given to judges. It is a structural protection for citizens.

If courts have neither purse nor sword, then their only real strength is public confidence in their impartial judgment. Once appointments, transfers or continuance in office are controlled by political power, the court’s judgment may appear dependent on the very institutions it is supposed to review.

This is why judicial appointments are not a mere service matter. They are part of the constitutional architecture and the bais concept of separation of powers.

LaRue’s “Neither Force Nor Will”: Why Hamilton Still Matters

Lewis H. LaRue’s article, Neither Force Nor Will, revisits Hamilton’s famous phrase and shows why it continues to matter in modern constitutional law.

Hamilton’s original picture of the judiciary was elegant: courts were supposed to exercise judgment, not political will. But modern constitutional courts perform a far more demanding role. They interpret broad constitutional provisions, review legislation, protect fundamental rights, supervise administrative power and, at times, influence the direction of public policy through constitutional adjudication.

This creates a delicate balance.

If the judiciary is too dependent on political branches, judicial review may become impracticable in reality. If the judiciary is completely closed and opaque, public confidence may suffer. The problem is not solved by shouting “judges appointing judges” across a television studio. Nor is it solved by pretending that every criticism of the collegium is an attack on judicial independence. The real constitutional problem is institutional design: how to preserve judicial independence without allowing secrecy, insularity or unaccountability.

The Indian collegium debate should be understood in this deeper sense. It is not merely a debate about who gets appointed. It is a debate about how the only branch without purse or sword can remain independent enough to judge those who possess both.

The Prime Time Contitutional Debates & Opinions

This issue is not merely academic. In a recent televised discussion with Arnab Goswami on judicial accountability, Harish Salve criticised the Indian collegium system and argued that “no country in the world” has judges appointing judges. He referred to the United Kingdom’s open selection model and the United States’ political or electoral elements, and used this comparison to argue that India’s closed-door collegium system must go.

That criticism raises an important issue. The collegium system does need reform. It has been without doubt regularly criticised for opacity, lack of clear criteria, insufficient diversity, delays, nepotism and limited public reasoning. However, the claim that no other country gives judges or judicial institutions decisive control over appointments is myopic.

The UK may have open selection through a judicial appointments commission. The United States may involve political nomination, Senate confirmation or even elections in some state systems. But Europe does not follow one uniform model. Several European democracies use judicial councils or high councils of the judiciary where judges or judicial institutions have substantial, and sometimes binding, control over appointments and judicial careers.

Perhaps, comparative constitutional law cannot be decided in the tone of a breaking-news ticker. A studio slogan may sound powerful, especially when delivered with prime-time urgency, but constitutional law is not governed by slogans. It is the same problem we see in dramatic political claims such as : “Samvidhan badal denge!” Anyone who reads Article 368 with the basic structure cases understands that the Constitution is not a notebook that can be rewritten at political convenience. Parliament may amend the Constitution, but it cannot destroy its basic structure. In the same way, the collegium may be criticised, improved or institutionally redesigned, but the debate must proceed through constitutional principle, precedent and comparative analysis and not through sweeping television prime-time claims.

From S. P. Gupta to the Collegium

The Indian debate on judicial appointments has travelled through several constitutional stages.

In S. P. Gupta vs Union of India, commonly known as the First Judges Case, the Supreme Court held that “consultation” with the Chief Justice of India did not mean “concurrence”. This gave primacy to the executive in judicial appointments.

The Court was not unaware of judicial independence. On the contrary, S. P. Gupta contains a deep discussion on the independence of the judiciary. The judgment recognised that independence of the judiciary is one of the foremost concerns of the Constitution. It referred to safeguards such as security of tenure, charged expenditure, protection of salaries and restrictions on legislative discussion of judicial conduct.

Yet the majority ultimately favoured executive primacy. The reasoning was that the President, acting on the aid and advice of the Council of Ministers, represented democratic accountability.

Later, this approach was reconsidered. In the Second Judges Case and the Third Judges Case, the Supreme Court moved towards judicial primacy. The collegium system emerged from this shift. The Court took the view that independence of the judiciary, being part of the basic structure of the Constitution, requires primacy of the judiciary in appointments to the higher courts.

The deeper logic is clear. If the executive has primacy in appointing judges who will later review executive action, there is a structural risk to judicial independence. The judiciary cannot effectively act as a constitutional check if its composition is substantially controlled by the branch it must check.

This is the Indian constitutional answer to the Hamiltonian problem: a branch without purse or sword must be protected from domination by those who possess both.

The NJAC Case: Need for Reform Was Admitted Unanimously, Executive Veto Was Not

The most important modern challenge to the collegium system came through the Ninety-Ninth Constitutional Amendment and the National Judicial Appointments Commission Act, 2014. The NJAC was designed to replace the collegium system for appointments to the Supreme Court and High Courts.

The proposed NJAC consisted of six members: the Chief Justice of India as Chairperson, two senior-most judges of the Supreme Court, the Union Minister in charge of Law and Justice, and two eminent persons. On paper, this appeared to be a broader and more participatory appointments body. It was presented as a reform against the opacity of the collegium.

However, in Supreme Court Advocates-on-Record Association v. Union of India, the Supreme Court struck down the Ninety-Ninth Amendment and the NJAC Act by a 4:1 majority. The majority held that the NJAC damaged the basic structure of the Constitution because it failed to preserve the primacy of the judiciary in appointments to the higher judiciary.

Justice J. S. Khehar held that the provisions relating to the composition of the NJAC were insufficient to preserve judicial primacy in the selection and appointment of judges to the Supreme Court and High Courts. He also found the inclusion of the Union Law Minister as an ex officio member problematic because it affected the principles of judicial independence and separation of powers. The inclusion of two “eminent persons” was also held constitutionally vulnerable because of the uncertainty and possible influence created by their role.

Justice Madan B. Lokur emphasised the institutional character of judicial consultation. In the Second Judges Case, the opinion of the Chief Justice of India was not treated as an individual opinion, but as a collective and institutional opinion formed after consultation with other judges. According to Justice Lokur, the NJAC reduced the Chief Justice of India from an institutional figure to only one member within a larger body and limited his ability to consult judges outside the NJAC. This, in his view, weakened the independence of the judiciary in appointments.

Justice Kurian Joseph agreed that direct participation of the executive or other non-judicial elements could lead to structured bargaining in appointments. He warned that any dilution of the basic structure, even if presented as reform, should be stopped at the earliest stage.

Justice A. K. Goel also held that the Law Minister and non-judge members could not be placed at par with the Chief Justice of India and senior judges of the Supreme Court in the matter of judicial appointments. The concern was not merely numerical representation, but the possibility that non-judicial members could exercise a veto against judicial opinion, thereby interfering with judicial independence.

Justice Jasti Chelameswar dissented. His dissent is important because he did not deny the need for judicial independence. Rather, he believed that the NJAC was a constitutionally valid attempt to introduce accountability and transparency into a system that had become too closed. He upheld the validity of the Ninety-Ninth Amendment and the NJAC Act. According to him, the fact that two members of the NJAC could stall a recommendation did not by itself make the system illegal. He also made a broader institutional point: only an independent and efficient judicial system can create public confidence, and the growing pendency of cases before constitutional courts is not a certificate of institutional efficiency.

Justice Chelameswar’s dissent therefore represents the reformist side of the debate. It reminds us that judicial independence cannot become a shield for inefficiency, opacity or lack of accountability. But the majority represents the structural side of the debate: reform is permissible, but not at the cost of destroying judicial primacy in appointments to constitutional courts.

The NJAC case is therefore often misunderstood. It was not a judgment saying that the collegium is perfect. In fact, even the majority recognised the need to improve the collegium system. Justice Lokur specifically referred to the need for further steps to streamline the appointment process, make it more responsive to the needs of the people, make it more transparent and bring it in tune with societal needs.

Thus, the correct lesson from the NJAC case is that reform of the collegium is possible as well as required. However, it must be done without transfer of decisive control over judicial appointments to the executive or to uncertain non-judicial veto powers. The debate is not between “collegium forever” and “executive control.” The real constitutional task is to design a system that preserves judicial independence while improving transparency, efficiency, diversity and public confidence.

Why the Phrase “Judges Appoint Judges” Is Misleading

The phrase “judges appoint judges” is itself misleading.

Even in India, judges do not literally issue the warrant of appointment. Judges of the Supreme Court and High Courts are formally appointed by the President of India under Articles 124 and 217 of the Constitution. The Union Government, the Law Ministry, state constitutional authorities, intelligence inputs and the Memorandum of Procedure all form part of the appointment process. The executive may return a recommendation for reconsideration.

However, under the present collegium system and the existing Memorandum of Procedure, once the collegium reiterates a recommendation after reconsideration, the recommendation is to be accepted by the Government. This is why India is more accurately described as a system of judicial primacy, not a system where judges literally issue appointment orders.

The fallacy begins when this description is converted into an absolute claim: that India is the only country in the world where the judiciary has decisive influence over appointments. That claim is wrong as illustrated further.

Many democracies deliberately insulate judicial appointments from direct political control. This is not accidental. It flows from the idea that courts must remain independent from the executive and legislature. If courts are expected to review political power, they cannot be institutionally dependent on political power for their own composition.

India that is Bharat is Unusual, But Not Alone in Judicial Primacy

India’s collegium system is unusual for two main reasons.

First, it is judge-made. Unlike countries where judicial councils are expressly created by constitutional or statutory design, the Indian collegium emerged through judicial interpretation.

Second, it applies with great force to constitutional courts, namely the Supreme Court and High Courts.

But India is not alone in giving the judiciary substantial control over appointments. Several countries use judicial councils or high councils of the judiciary. In some systems, judges form the majority. In others, the council’s opinion is binding. In still others, the formal appointment is made by the President or Parliament, but the real selection power lies with a judicial institution.

This is why the correct comparative question is not: “Does any country have India’s exact collegium system?” The correct question is: “Do other democracies give judges or judicial councils a decisive role in judicial appointments?”

The answer is a resounding yes.

Italy: One of the Strongest Models of Judicial Self-Government

Italy is one of the clearest examples of strong judicial self-government.

The Consiglio Superiore della Magistratura, or High Council of the Judiciary, is a constitutional body designed to safeguard the autonomy and independence of the judiciary. It deals with recruitment, assignment, transfer, promotion, dismissal and disciplinary matters concerning magistrates.

This is broader than India’s collegium in one respect. India’s collegium is mainly concerned with appointments and transfers in the higher judiciary. Italy’s CSM is involved in the broader career management of magistrates.

Italy therefore cannot be ignored in any serious discussion on judicial control over appointments. It may be considered one of the strongest judicial self-government systems in the world.

The difference is structural. India has a collegium. Italy has a constitutional judicial council. But both systems recognise the same underlying concern: judicial careers must not be left to ordinary executive discretion.

France: Binding Role of the Superior Council of the Judiciary

France also contradicts the claim that only India has judicial primacy.

The Conseil supérieur de la magistrature, or Superior Council of the Judiciary, has a constitutionally recognised role in judicial appointments. For certain senior judicial positions, it makes proposals. For other sitting judges, appointments are made on its binding opinion.

This is not a merely decorative role. When the opinion is binding, the executive cannot treat it as a casual suggestion. The President may formally appoint, and the executive may remain part of the structure, but the appointment power is substantially limited by the Council’s constitutional role.

France is therefore a mixed system where formal executive appointment coexists with binding judicial-council influence.

Croatia: Judicial Majority in the State Judicial Council

Croatia’s State Judicial Council is another important example.

The Council appoints, promotes, transfers, dismisses and disciplines judges. Its composition gives judges a clear majority: seven out of eleven members are judges elected by judges themselves.

This means that judicial control can exist not only through a collegium but also through a judicial-majority council. Croatia may not follow the Indian model, but it cannot be described as a system where the political executive freely controls judicial appointments.

Greece: Supreme Judicial Councils Decide Career Matters

Greece has Supreme Judicial Councils that play a substantial role in judicial career decisions.

Promotions, assignments to posts, transfers, detachments and related career movements are decided through judicial council processes and then formalised by presidential decree.

This distinction is very important. A system may formally say that the President appoints or issues the decree. But the real constitutional question is: who makes the substantive decision?

In Greece, the judicial councils play a major substantive role in judicial career matters.

Portugal: Autonomous Judicial Council with Mixed Composition

Portugal’s High Council of the Judiciary also plays a major role in the appointment, assignment, transfer and promotion of judges, as well as disciplinary matters.

Portugal is not as judiciary-dominant as Italy or India in the narrow sense, because the Council has a mixed composition. However, judicial careers are still managed through an autonomous constitutional institution rather than being left to direct government control.

This represents a balanced judicial-council model. It protects independence while avoiding complete judicial exclusivity.

Romania: Strong Role of the Superior Council of Magistracy

Romania’s Superior Council of Magistracy includes judges and prosecutors elected by their peers and plays an important role in judicial career matters.

It is not a purely judge-only body. Prosecutors, institutional actors and other constitutional elements are part of the structure. But the judiciary and magistracy have a strong role in appointments, promotions and discipline.

Romania therefore shows a middle model: not judicial monopoly, but certainly not ordinary executive dominance.

Slovenia: Judicial Council as Gatekeeper with Parliamentary Appointment

Slovenia follows a model where the Judicial Council selects candidates and proposes one candidate for one judicial office to the National Assembly.

Parliament has a formal role in election. But the Judicial Council acts as a gatekeeper. It filters, selects and proposes candidates. Without that institutional proposal, the appointment process cannot function in the ordinary way.

Slovenia therefore has lower judicial control than Italy or India, but still gives the Judicial Council a constitutionally significant role.

Comparative Position: The Spectrum of Judicial Control

The countries discussed above do not follow one identical model. They represent a spectrum.

At one end, Italy has one of the strongest forms of judicial self-government, with a High Council that controls major aspects of judicial careers. India stands close to this end in relation to appointments and transfers in the constitutional courts, because the collegium enjoys effective primacy. Croatia also gives strong control to a judicial-majority council.

France, Greece and Portugal occupy a middle position. Their systems involve formal roles for Presidents, executives or mixed councils, but judicial councils exercise substantial or binding influence over appointments and career matters.

Romania and Slovenia show comparatively lower judicial dominance, but even there, judicial councils perform important gatekeeping and career-management functions.

This spectrum shows why the slogan “only India has judges appointing judges” is inaccurate. The real comparative question is not whether another country has a carbon copy of the Indian collegium. The real question is whether other constitutional democracies give judges or judicial councils decisive influence over judicial appointments. The answer is clearly yes.

Judicial Independence Is Not Judicial Privilege

The discussion must not be misunderstood.

Judicial independence does not mean that judges are superior to the people. It does not mean that judges should be above criticism. It does not mean that the collegium system is perfect. It does not mean that opacity should be defended in the name of independence.

Judicial independence means that courts must be free to decide cases without fear of political retaliation or hope of political favour.

The reason is simple. Courts decide disputes between citizen and State. They review executive action. They test legislation on constitutional grounds. They enforce fundamental rights. They protect minorities, unpopular individuals and vulnerable groups.

If such courts are dependent on political branches for appointment, transfer or career advancement, their independence may be weakened at the very point where it is most needed.

That is the constitutional relevance of Hamilton’s metaphor. The judiciary has no purse and no sword. If it also loses independence of judgment, it loses its constitutional identity.

The Real Criticism of the Collegium

The Indian collegium system can certainly be criticised.

There are serious concerns regarding transparency, diversity, accountability, reasons for selection, delays, non-public criteria and absence of a formal appointments secretariat. These concerns are legitimate.

But they should not be confused with the false argument that India is the only country where judges have a decisive role in appointments.

A better criticism would be this: India needs a more transparent and institutionally structured system that preserves judicial independence while improving accountability.

That is very different from saying that the executive should dominate appointments. Executive primacy may produce democratic appearance, but it also creates the risk of political influence over courts.

The correct reform path should not weaken independence. It should improve the manner in which independence is exercised.

Judicial Independence Versus Judicial Exclusivity

The deeper constitutional issue is the difference between judicial independence and judicial exclusivity.

Judicial independence means protection from political pressure. Judicial exclusivity means judges alone control the process without adequate transparency or accountability.

The first is essential. The second is debatable.

A good appointment system must balance independence, merit, diversity, transparency, institutional accountability and public confidence. The collegium strongly protects independence, but it has been criticised for insufficient transparency. Judicial council systems in other countries try to combine judicial participation with broader institutional structure.

Therefore, the lesson from comparative law is not that India must copy any one country. The lesson is that judicial primacy is not an Indian abnormality. It is one recognised method of protecting the branch of government that has no purse and no sword.

Conclusion

The statement that “India is the only country where judges appoint judges” is a fallacy.

India’s collegium system is unusual because it is judge-made and gives strong primacy to senior judges in appointments to the Supreme Court and High Courts. But India is not alone in giving the judiciary a decisive or veto-like role in judicial appointments.

Italy has a powerful High Council of the Judiciary. France gives binding appointment influence to its Superior Council of the Judiciary. Croatia has a judicial-majority council. Greece uses Supreme Judicial Councils for substantive career decisions. Portugal, Romania and Slovenia all give judicial councils significant roles in appointment and career management.

The deeper constitutional reason is that courts are not political departments. They do not possess the executive’s sword or the legislature’s purse. Their only constitutional weapon is judgment. That judgment must be independent if courts are to protect the Constitution against both executive excess and legislative overreach.

Therefore, the real debate should not be based on the false claim that India alone has judicial primacy. The real debate should be this: how can India preserve judicial independence while improving transparency, accountability, diversity and public confidence in the collegium system?