The Collegium Must Grow Up: Why Judicial Appointments Cannot Depend On Chance

India's judicial appointments system rests on an irony it has never fully confronted. It is a structure devised to insulate the judiciary from executive whim, yet it remains acutely vulnerable to internal accident. Who sits in the collegium on a given day, who has retired a week earlier, and who is technically present but practically excluded can make the difference between elevation and eclipse. That is not constitutional design. It is institutional improvisation.

The collegium system was created to defend judicial independence against executive overreach. Over time, however, it has revealed a deeper weakness: the absence of continuity. Collegiums at both High Court and Supreme Court levels are transient bodies, constantly reshaped by retirements, transfers, and elevations. They have no permanent memory, no neutral fact-gathering arm, and no settled methodology that survives individual tenures. Decisions, therefore, often turn less on objective assessment and more on the contingencies of timing and personality.

Recent events, both old and new, show how deeply this problem runs.

When Retirement Rewrites Decisions

There was a period when the Supreme Court collegium made no recommendations for appointment to the Supreme Court at all. Vacancies existed. Eligible judges were available. Yet nothing moved. The reason lay in a disagreement within the collegium itself.

Justice Rohinton Nariman, then a member of the collegium, made it clear that he would not agree to appointments that involved superseding Justices S. Muralidhar and Akhil Khurshid. Other members of the collegium were reluctant to press forward with names that were likely to provoke resistance from the government. The result was a stalemate.

Nothing in the Constitution mandates such paralysis. Nothing in the Memorandum of Procedure contemplates that appointments should halt because one judge insists on convention while others prefer accommodation. Yet the system simply waited. When Justice Nariman retired, the impediment vanished. The collegium resumed its work. The principle was not resolved. It merely aged out.

This was not an isolated episode. An earlier instance illustrates the same fragility even more starkly.

A collegium that included Justices Ranjan Gogoi and Madan B. Lokur had recommended Justices Rajendra Menon and Pradeep Nandrajog for appointment to the Supreme Court. These were not tentative discussions but formal recommendations. Before the appointments could be finalised, Justice Lokur retired. What followed was revealing. With Justice Gogoi continuing as Chief Justice and heading a reconstituted collegium, the earlier recommendations were quietly dropped. In their place, Justices Sanjeev Khanna and Dinesh Maheshwari were recommended and eventually appointed.

The system offered no public explanation for this reversal. There was no recorded finding that the earlier recommendations were flawed, no articulated reassessment of merit, and no institutional acknowledgment that the outcome had changed solely because the collegium itself had changed. These episodes together expose an uncomfortable truth. Supreme Court appointments, the highest judicial decisions in the land, can hinge not on settled criteria or institutional consensus, but on who retires when. That is not independence. It is fragility disguised as discretion. A constitutional process that produces different outcomes because one judge demits office on a particular date is not robust. It is brittle.

The Madras High Court and the Cost of Convenient Exclusion

The same weakness is visible closer to home in the recent collegium recommendations to the Madras High Court. Justice J. Nisha Banu had been transferred to the Kerala High Court but had not assumed charge immediately. Constitutionally, she continued to be a judge of the Madras High Court till she joined the Kerala High Court. The Presidential notification transferring her said so in clear terms, even while fixing a deadline for her joining the transferee court. Despite this, she was excluded from the collegium when recommendations were pushed through. Her place was taken by Justice M. S. Ramesh, the next in seniority.

The consequences of this substitution have since unfolded with almost clinical clarity. Justice Ramesh has now retired. Justice Nisha Banu, who knows the Madras High Court Bar and its internal dynamics, is no longer available, having assumed office in the Kerala High Court. The Madras High Court collegium today includes neither of the judges whose presence or absence shaped the original decision.

This places the system in an untenable position. If the Supreme Court finds procedural infirmity and asks for fresh recommendations, the exercise will have to be undertaken by an entirely different collegium. The very judges who were central to the controversy will be absent. The earlier recommendations may well be rendered nugatory, not because of malice or incompetence, but because the system lacks continuity. This is not a minor procedural quirk. It is the predictable outcome of treating collegiums as temporary gatherings rather than as constitutional institutions with enduring responsibility.

When Procedure Becomes Substance

It is often argued that such procedural deviations should not matter if the candidates are otherwise suitable. This argument misunderstands constitutional design. Procedure is not decorative. It is foundational. The collegium itself is not a constitutional body created by text. It is a judicial construct, sustained entirely by adherence to norms developed by the judiciary. When those norms are bent for convenience, the legitimacy of the outcome suffers. In the Madras High Court episode, the exclusion of a judge who constitutionally continued to hold office, followed by the retirement of her replacement, exposes how easily institutional decision-making can be reshaped by timing, transfers, and administrative interpretation.

Reconsideration and Executive Gravity

The reconsideration of Justice Atul Shridharan's transfer reinforces the same concern. Initially transferred from the Madhya Pradesh High Court to the Chhattisgarh High Court, the decision was revisited at the government's request and altered to a transfer to the Allahabad High Court. He would have been a collegium judge in Bilaspur, in Allahabad he is one of many . Though reconsideration is not illegitimate, but in the absence of transparent standards explaining when objections are accepted and when they are resisted, discretion begins to look like accommodation. Patterns matter, especially when explanations are sparse.

Collegiums Without Memory

All these episodes point to a single institutional failure. Collegiums have no memory. Each reconstituted body begins afresh, reliant on oral briefings, personal impressions, and informal consultations. There is no permanent secretariat, no structured database, and no neutral archive of information. Judges are asked to decide careers and constitutional futures based on reputation and incomplete records. Reputation, however, is neither neutral nor verifiable. It is shaped by ideology, proximity, and professional networks. No other constitutional appointment process of comparable importance operates this way.

From Chance to Skill

At present, the collegium functions like a game of chance. Outcomes depend on who retires when, who is transferred where, and who happens to be present. That is not how constitutional institutions are meant to operate. Appointments to the higher judiciary must become a game of skill: skill in evaluation, skill in institutional design, and skill in ensuring that outcomes do not turn on accident or manipulation.

The collegium was meant to be a safeguard, not a lottery. If it is to retain legitimacy, it must acquire continuity. Judicial independence cannot rest indefinitely on good intentions and individual fortitude. It must be secured by systems that endure beyond personalities.

Views are personal

Author is Senior Advocate at Supreme Court of India