Ex-SC Judge Justice Katju highlights the fundamental defect in the Collegium system in his open letter to CJI B.R. Gavai, urging immediate formation of an 11-judge bench to revisit Second and Third Judges’ case verdicts.
Justice Markandey Katju, a former Supreme Court judge of India, has addressed an open letter to Chief Justice B.R. Gavai, calling for a review of the collegium system.
He argues that this system, which is not referenced in the Constitution, emerged from earlier Supreme Court rulings that have diminished public confidence in the judiciary.
Katju urges the Supreme Court to promptly form an 11-judge constitutional bench to reassess the decisions made in the Second and Third Judges’ Cases.
The content of Justice Katju’s letter is as follows:
To Hon’ble The Chief Justice of India, Justice BR Gavai
Dear Brother,
I previously wrote an article commending Justice Nagarathna for her recent dissent during a Collegium meeting, which I have included below:
This highlights the flaws in the Collegium system for appointing judges to the Supreme Court and High Courts.
I am now appealing to you to establish a suo motu bench of 11 judges of the Supreme Court to reconsider the verdicts from the Second and Third Judges’ Cases, which instituted the Collegium system a system that has fallen into disrepute and has shaken public confidence in the judiciary.
If the Supreme Court can take suo motu action regarding stray dogs, surely this matter is of greater importance. If you hesitate to act suo motu, please consider this email as a letter petition for your action.
There is no reference to any Collegium system for appointing Supreme Court or High Court judges in the Indian Constitution.
Article 124(2) 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.”
Likewise, Article 217 does not mention any Collegium system for appointing High Court judges.
Thus, through judicial rulings, the Indian Constitution has effectively been amended. Was this a legitimate exercise of judicial power? It is well established that judges cannot add, amend, or remove provisions from legislation.
Furthermore, the authority to amend the Constitution is explicitly granted to Parliament under Article 368. How can the judiciary claim this power for itself? Nowhere else in the world do judges appoint judges as is done in India.
In the Second and Third Judges’ Cases, the Supreme Court, in what Lord Cooke termed a “sleight of hand,” replaced Article 124(2) of the Constitution with an alternative of their own design (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 esteemed former judges of the Indian Supreme Court, have remarked that Collegium decisions were often reached through “trade-offs,” meaning, “You agree to my man, and I will agree to yours,” which frequently led to the appointment of undeserving individuals. Moreover, there appears to be a growing impression that the Collegium often succumbs to governmental influence.
This cannot guarantee an independent and impartial judiciary.
My sincere request, therefore, is for you to either take suo motu action or treat this email as a letter petition and promptly establish an 11-member bench of the Supreme Court to revisit the decisions that set up the Collegium system, in order to restore public confidence in the judiciary.
Justice Markandey Katju
Former Judge of the Indian Supreme Court
New Delhi
10.9.2025
Read Also: HC Collegium Ignored CJI’s Advice: 2-Judges Moves SC
Justice Katju’s appeal further fuels the ongoing debate within the Indian judiciary regarding whether the collegium system enhances judicial independence or erodes public trust.
The response of the Chief Justice and the Supreme Court to this significant appeal remains to be seen.
The Supreme Court Collegium in India manages the appointment and transfer of judges to the Supreme Court and High Courts. This system created through important court rulings, especially in the Second and Third Judges Cases (1993 and 1998), to ensure the judiciary stays independent.
The Collegium includes the Chief Justice of India (CJI) and the four most senior judges of the Supreme Court.
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