Executive and Judiciary

Judges are appointed under Articles 124 and 217. The 99th Amendment replaced the collegium with the NJAC. The Court struck it down in 2015.

Why the Court struck it down

Independence is basic structure: Judicial independence is part of it, so no amendment can remove it.

Primacy of the judiciary: The Court traced it to the Second Judges case, 1993.

The executive gained a veto: The Law Minister sat on it, and any two members could block a name.

The eminent persons: No qualification was fixed, so the seats were open to political use.

Where the judgment can be questioned

The collegium is closed: It publishes no criteria and records no reasons.

The dissent: Justice Chelameswar called it opaque and answerable to nobody.

The promised fix stalled: The Memorandum of Procedure remains unsettled.

What should follow

Reform from within: A secretariat, published criteria and a deadline for the government.

Independence was protected. Accountability was postponed. The next reform must come from inside the judiciary.

Decode

Critically examine. Give the reasoning of the Court, then test it.

Implicit demand

The question is not whether the collegium is good. It is whether the Court was right to restore it.

Architecture

The event → why the Court held so → fair criticism → what should follow → verdict.

Articulation

Anchor: Articles 124 and 217, the 99th Amendment, the 2015 judgment, the Second Judges case, the Chelameswar dissent. Money line: independence was protected, accountability was postponed.

Why the Court struck it down

The case is Supreme Court Advocates on Record Association v. Union of India, 2015.

The NJAC had six members. The Chief Justice, two senior judges, the Law Minister and two eminent persons.

The First Judges case, 1981 gave the executive the upper hand. The Second Judges case, 1993 reversed it.

The Third Judges case, 1998 fixed the size of the collegium at five.

Supersession of judges in 1973 and 1977 is the history behind the Court's caution.

Where the judgment can be questioned

No other democracy lets judges alone select judges.

The South African Judicial Service Commission is a mixed body and works well.

Justice Chelameswar later stopped attending collegium meetings over the same complaint.

Four senior judges held a press conference in 2018 on the working of the Court.

The Court asked for a better Memorandum of Procedure in a separate order. Nothing was settled.

What should follow

A secretariat to receive names, keep records and run background checks.

Publishing the reasons for rejecting a name, without naming the person.

A fixed timeline for the government to act on a reiterated name.

Starting the process six months before a vacancy arises.

The All India Judicial Service under Article 312 is a separate reform. It covers the district courts.

Justice B.V. Nagarathna is the only woman among 33 Supreme Court judges, and women hold just 116 of 781 High Court posts.

Why greater representation is desirable

Diversity: A largely male bench narrows the experience brought to cases on marriage, sexual violence and harassment.

Equity: Women form 38 per cent of subordinate judges, so the gap at the top reflects a blocked pipeline, not a lack of talent.

Inclusiveness: Women litigants trust courts more when the bench includes judges like themselves.

Better law: The Vishaka bench of 1997, including Justice Sujata Manohar, framed the first harassment guidelines.

What would help

Stated collegium criteria: Chief Justice Surya Kant wants women candidates to be "a norm and not an exception", which should become a written criterion.

A wider pool: The Manipur, Tripura and Uttarakhand High Courts have no woman judge, so elevation must consider women systematically.

Representation is not a favour to women judges but a condition for a judiciary that reflects the people it judges.

Decode

Discuss desirability, and the three values named in the question must each be addressed by name.

Implicit demand

Data on the gap is essential, and the answer must show that the problem is the pipeline to the top, not the entry level.

Architecture

A data hook → diversity, equity, inclusiveness and quality of law → what would help → verdict.

Articulation

Anchor: one woman in 33 Supreme Court judges, 116 of 781 High Court judges, 38 per cent in subordinate courts, the Vishaka bench. Money line: representation is a condition for a judiciary that reflects the people it judges.

The numbers

As of February 2026, women held 116 of 781 working High Court posts, or about 14.85 per cent.

The Punjab and Haryana High Court had the highest number, 18 of 61 judges.

Women made up about 38 per cent of subordinate judges in February 2025, or 7,852 of 25,886.

Justice Fathima Beevi became the first woman Supreme Court judge in 1989, and only a handful have followed since.

Justice B.V. Nagarathna is in line to become the first woman Chief Justice of India, for a short term in 2027.

Why the pipeline narrows

Elevation depends on seniority at the Bar and in district courts, where women face breaks in career due to care responsibilities.

The collegium works without published criteria, so informal networks matter more than open competition.

Few women are designated senior advocates, which reduces their visibility for elevation from the Bar.

Infrastructure gaps, such as the lack of separate washrooms and creches in many district courts, discourage women from staying in practice.

Reforms and good practice

A Memorandum of Procedure with stated diversity goals could guide the collegium without imposing rigid quotas.

Several states reserve posts for women in judicial service examinations, such as Bihar and Rajasthan, which builds the base of the pipeline.

The Supreme Court Gender Sensitisation and Internal Complaints Committee and the Handbook on Combating Gender Stereotypes (2023) aim at the culture of courts.

Comparative example: women form a much larger share of higher judges in countries such as Canada and the United Kingdom, where appointment bodies publish diversity data.

States promulgated 127 ordinances in 2025, more than the year before. The Governor's law making power is again a live constitutional question.

Conditions for the power

Only when the House is not sitting: Article 213 allows an ordinance only when the assembly is not in session.

Only on satisfaction of urgency: The Governor must find that immediate action is necessary, acting on ministerial advice.

Only within state competence: The subject must be one on which the legislature itself could legislate.

With the President in three cases: Prior instruction is needed where a bill on that subject would have required sanction, reservation or assent.

For a limited life: It must be laid before the House and lapses six weeks after it reassembles.

Open to review: Cooper (1970) removed the immunity of that satisfaction, so malafides can be examined.

Issuing an ordinance again without laying it

The practice: Governments keep an ordinance alive by issuing it afresh each time the House rises.

The first warning: In D.C. Wadhwa (1987), the Court struck at Bihar's ordinance raj, where some ordinances ran over a decade.

The settled law: In Krishna Kumar Singh (2017), seven judges held laying mandatory and fresh issue a fraud on the Constitution.

Why it matters: An emergency power used as a substitute for legislation removes the deliberation that legitimises law.

The Governor's power is conditional, temporary and answerable to the House. Issuing an ordinance again without laying it is therefore not merely bad practice but unconstitutional.

Decode

Two halves: the conditions under Article 213, then the legality of issuing an ordinance again. The second half asks for a legal position, not an opinion.

Implicit demand

Marks come from precision on the conditions and from naming the two cases that settle the second half.

Architecture

A hook with the ordinance count → five conditions and the review point → the practice, the cases and why it matters → verdict.

Articulation

Anchor: Article 213, six weeks, D.C. Wadhwa 1987, Krishna Kumar Singh 2017, 127 state ordinances in 2025. Money line: issuing an ordinance again without laying it is not merely bad practice, it is unconstitutional.

The scheme of ordinance making

Article 123 gives the same power to the President, and the two provisions are read together.

An ordinance has the same force and effect as an Act, but is subject to the same limits, including Part III.

R.C. Cooper (1970) and A.K. Roy (1982) established that the satisfaction is justiciable on limited grounds.

An ordinance cannot amend the Constitution, and the power cannot be used to override a court order.

Where the assembly is in session even in one House of a bicameral legislature, the power cannot be used.

The record of ordinance use

States issued 127 ordinances in 2025, against 100 in 2024, led by Uttar Pradesh with 16 and Telangana with 14.

Kerala's practice of issuing ordinances afresh, including on the Lok Ayukta in 2023, led its Governor to object publicly.

At the Union level, ordinances have been used for the Insolvency Code and for taxation, and have often been laid and enacted in time.

The Second Administrative Reforms Commission recommended that ordinances be issued only in genuine emergencies.

Short sessions of state assemblies, some lasting only a few days a year, make the practice easier.

The Governor and assent to bills

Under Article 200 the Governor may assent, withhold assent, return a bill or reserve it for the President.

In State of Tamil Nadu (April 2025), two judges held there is no pocket veto, read in timelines and treated ten bills as assented under Article 142.

On the Presidential Reference, a bench of five judges held in November 2025 that courts cannot fix timelines and that there is no deemed assent.

The same opinion held that prolonged and unexplained inaction can still attract a limited direction to act within a reasonable time.

The Governor is ordinarily bound by ministerial advice, and the discretion under Article 163 is narrow.

The Punchhi Commission recommended a fixed period for the Governor to decide on bills, which remains unimplemented.

In May 2026 a bench of nine judges said that public interest litigation had become private, publicity and political interest litigation. The remark measures how far the instrument has travelled since 1979.

Why it grew

Standing was relaxed: S.P. Gupta (1981) allowed any public spirited person to move the court, breaking the rule that only the injured may sue.

Procedure was simplified: A postcard was accepted as a petition in Hussainara Khatoon (1979), which opened the court to undertrials and bonded labour.

Rights were read widely: Article 21 was expanded to cover livelihood, environment, health and education, giving petitioners a peg for almost any grievance.

Remedies were flexible: Articles 32 and 142 allowed continuing mandamus, commissions of inquiry and detailed directions.

The other branches faltered: Administrative failure and legislative silence on pollution, custodial violence and food security left a vacuum.

Is it the most powerful judiciary

The case for yes: It can strike down a constitutional amendment under the basic structure doctrine, which few courts anywhere can do.

It chooses its own judges: The collegium appoints judges, and the court struck down the National Judicial Appointments Commission in 2015.

The case for no: Orders depend on an executive that implements them slowly, and pendency stands near 93,000 cases in the court itself.

It has begun to limit itself: In November 2025 the court held that Article 142 cannot supply assent to a bill and refused to fix timelines for a Governor.

Public interest litigation grew because other institutions failed, and it made the court unusually powerful in doctrine. That power is wide rather than deep, since the court cannot execute what it decrees.

Decode

Two parts: reasons for growth, then a judgement on the claim about the most powerful judiciary. The second half must be answered, not dodged.

Implicit demand

The examiner wants case names for the growth and a balanced verdict that notes both the court's unique powers and its dependence on the executive.

Architecture

A hook from the 2026 remark → six reasons for growth → the case for and against the claim → verdict.

Articulation

Anchor: S.P. Gupta 1981, Hussainara Khatoon 1979, the basic structure doctrine, the collegium, the opinion of November 2025. Money line: the power is wide rather than deep.

The growth of the jurisdiction

Hussainara Khatoon (1979) on undertrial prisoners is treated as the first case of the genre, followed by Bandhua Mukti Morcha (1984) on bonded labour.

M.C. Mehta cases produced the absolute liability rule, the relocation of industries from Delhi and the switch of public transport to compressed natural gas.

Vishaka (1997) framed guidelines against workplace harassment in the absence of a law.

PUCL cases created the right to food and the option of none of the above on the ballot.

The court has used commissions, amicus curiae and expert committees to gather facts it cannot collect itself.

The criticism

Judicial overreach into policy and budget choices, which are the domain of the elected branches.

Selective admission, since the court decides which causes to hear and when.

Misuse for private, commercial and political ends, which the court itself flagged in May 2026.

Delay, with pendency of about 93,000 cases in the Supreme Court and over five crore across all courts.

Judgments that are not implemented, such as directions on police reform from Prakash Singh (2006).

Court remarks in the Pipavav port case of May 2026 questioned petitions that stall projects, and drew a public response from lawyers and activists.

Comparison and reform

The American Supreme Court cannot strike down a constitutional amendment, and German and South African courts work within stricter standing rules.

The British courts can only declare a statute incompatible with rights, not invalidate it.

Suggested reforms include stricter screening of petitions, costs for frivolous filings and time limits for disposal.

A national court of appeal and regional benches have been proposed to reduce pendency.

The court's own recent restraint under the Presidential Reference opinion is the most significant internal correction.