To Hon’ble The Chief Justice of India, Justice BR Gavai
Brother
I had written an article praising Justice Nagarathna for her recent dissent in a Collegium meeting, which is given below :
https://justicekatju.com/long-live-justice-nagarathna-51cac9b53730
This shows the defect in the Collegium system for selecting persons for appointing them as judges of the Supreme Court and the High Courts.
Now I am appealing to you to immediately set up suo motu a bench of 11 judges of the Supreme Court to revisit the Second and Third Judges case verdicts which set up the Collegium system, a system which has fallen into disrepute, and which has shaken the confidence of the public in the judiciary. If the Supreme Court can take suo motu action regarding stray dogs, surely this is a more important matter. If you are reluctant to take suo motu action, this email may be treated as a letter petition, and you can take action on it.
There is no mention in the Indian Constitution of any Collegium system for appointing Judges of the Supreme Court or the High Courts.
Article 124(2) of the Constitution states :
” Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted ”.
Similarly, for appointing Judges of the High Courts there is no mention of any Collegium system in Article 217.
Thus by judicial verdicts the Indian Constitution has practically been amended. Was this a legitimate excercise of judicial power ? It is well settled that judges can neither add to, amend, or delete provisions in an enactment. Moreover power to amend the Constitution has been expressly given to Parliament vide Article 368. How can the judiciary usurp this power and arrogate it to itself ? Nowhere in the world do judges appoint judges, as is being done in India.
In the second and third judges cases, by what has been called by Lord Cooke as a ‘sleight of hand’, the Supreme Court substituted Article 124(2) of the Constitution by something of their own invention ( see Lord Cooke’s article ‘Where Angels fear to tread’ in the book ‘Supreme but not Infallible’ ) .
Justice Krishna Iyer and Justice Ruma Pal, both highly respected former judges of the Indian Supreme Court, have said that Collegium decisions were often reached by ‘trade-offs’, i.e., ‘You agree to my man, and I will agree to yours’, which often resulted in undeserving persons being appointed. Moreover, the impression which seems to have been created lately is that the Collegium often surrenders to government pressure.
This cannot ensure an independent, impartial judiciary.
My humble appeal to you therefore is to suo motu ( or by treating this email as a letter petition ) set up immediately a 11 member bench of the Supreme Court for revisiting the decisions setting up a Collegium system, so that the confidence of the people in the judiciary may be restored
Justice Markandey Katju
Former Judge of the Indian Supreme Court
New Delhi
10.9.2025
