Approach:

Introduction: Introduce the constitutional provisions dealing with judicial appointments.

Body: Elaborate on the appointment process, including the collegium system and the judicial precedents. Highlight the issues with the current appointment system.

Conclusion: Give a holistic conclusion.

Answer:

Article 124 of the Constitution deals with the appointment of the Chief Justice and Judges of the Supreme Court, while Article 217 deals with the appointment of Judges of the High Courts.

Process of the appointment of Judges: Article 124(2) and Article 217(1) vests power on the President to appoint Judges of the Supreme Court and High Court respectively including the Chief Justice, by warrant under his hand and seal.

Consultation: Appointment of the Judges shall be made after “consultation” with such Judges of the Supreme Court and of the High Courts in the States, as the President may deem necessary.

Process:

1. The senior-most judge of the Supreme Court who is deemed suitable holds the position of the CJI.
2. The Union Law Minister seeks the outgoing CJI's recommendation for their successor at an appropriate time.
3. Once the CJI provides the recommendation, the Law Minister forwards it to the Prime Minister, who advises the President on the appointment.
4. When a vacancy is expected in the Supreme Court, the collegium recommends a candidate to the Union Law Minister.
5. The CJI obtains the opinions of the senior-most judges in the Supreme Court who come from the High Court of the recommended candidate's origin.
6. All opinions from the collegium members and other consulted judges must be in writing and included in the candidate's file sent to the government.
7. After receiving the collegium's recommendation, the Law Minister forwards it to the Prime Minister, who advises the President on the appointment.

However, the current system of appointments, primarily established through judicial precedents - Three Judges Cases - has faced criticism and raised several issues.

1. Lack of Transparency: The process of appointment lacks transparency as it takes place behind closed doors, making it difficult for the public to assess the criteria and reasons behind the selection of judges. The lack of transparency has led to concerns about favouritism and accountability.
2. Collegium Opacity: The functioning of the collegium, which makes the recommendations for appointments, has been criticized for its lack of transparency and absence of well-defined criteria for selecting judges. The decisions made by the collegium are often not accompanied by comprehensive reasoning, leading to ambiguity.
3. Against the doctrine of checks and balances: The appointment process is heavily concentrated in the hands of the judiciary, particularly the collegium. This has led to criticism that it lacks the necessary checks and balances, as there is minimal involvement of the executive and limited scope for public accountability in the appointment process.
4. Delay in Appointments: As the tussle between the executive and judiciary with regard to judicial appointments still continues, the appointment process has been plagued by significant delays, resulting in prolonged vacancies in the higher judiciary. This hampers the timely administration of justice and can adversely affect the efficiency of the judicial system.
5. Lack of Diversity: There have been concerns regarding the lack of diversity, including gender and regional representation in the appointments made to the higher judiciary. E.g., only 11% of the judges in the high court and four female judges in the Supreme Court. Critics argue that the current system does not adequately address the need for inclusivity and representation of marginalized sections of society

The higher Judiciary play a vital role in upholding the rule of law and protecting the rights of citizens. If the appointment process lacks transparency, there is a risk that judges will be appointed on the basis of other considerations rather than merit. This would undermine the independence of the judiciary which is part of the basic structure. So, the judiciary and executive should finalize the Memorandum of Procedure.