Constitution Of Collegium - A Case For Self-Correction ?

On January 20, 2009, Barack Obama stood on the steps of the United States Capitol and prepared to take the oath of office as President. The words he was about to speak were not ceremonial fluff. They were set out verbatim in Article II of the US Constitution. Every syllable mattered.

Chief Justice John Roberts began administering the oath. In the glare of cameras and before a sea of expectant faces, he misplaced a word. Instead of asking the President-elect to say he would “faithfully execute the Office of President of the United States,” Roberts shifted the position of “faithfully.” Obama paused. There was a brief exchange. The sentence was completed, but not in the precise order the Constitution prescribed. No one doubted who had won the election. No one seriously believed that the Republic would collapse over a transposed adverb. Yet the next day, inside the White House, the oath was administered again. Quietly. Carefully. Word perfect.

The White House counsel explained the reason in simple terms. Out of an abundance of caution, it was better to remove even a shadow of doubt. When the Constitution prescribes a solemn act in a specific manner, the safest course is to perform it in that manner. Not approximately. Not substantially. Exactly. That story is worth recalling as the controversy surrounding the recommendations for appointment of judges, by the collegium of the Madras High Court unfolds.

A recent writ petition in the Supreme Court, questioned the composition of the Madras High Court Collegium at a time when Justice Nisha Banu, though functioning as a judge of the Court, was not included in the collegium's deliberations when it came to recommending lawyers for appointments as judges of that High court. The Supreme Court declined to entertain the challenge, observing that the issue was “non-justiciable” and that such matters fall on the administrative side . Judicial restraint in matters of internal governance is not new. Courts have long recognised that not every internal administrative decision warrants judicial correction. The Supreme Court's observation reflects that instinct for institutional self-regulation. But describing something as administrative does not make it trivial. Nor does it make procedural discipline optional. The ghost of Justice Nisha Banu's absence from the collegium will like Banqo's ghost, haunt the legality of the collegium recommendations that excluded her.

The collegium system, as evolved in the Second and Third Judges cases, rests on conventions of seniority and collective decision-making. In a High Court, the collegium comprises the Chief Justice and the two senior-most puisne judges. That composition is not an aesthetic choice. It is the structural safeguard that tempers individual discretion with collective judgment. In the present instance, Justice Nisha Banu continued to function as a judge of the Madras High Court, notwithstanding a transfer notification. Yet she was not included in the collegium that met and made recommendations. The petition did not seek to question the merits of any recommendation. It did not ask the Supreme Court to substitute its wisdom for that of the High Court. It raised a narrower point. Was the collegium, as constituted on that day, in conformity with its own norms of seniority and participation ?

That question goes to the root of institutional competence. If the collegium's authority derives from its composition, then the omission of a judge who was, by seniority, entitled to participate cannot be brushed aside as a mere irregularity. It is not about personalities. It is about process.

The Supreme Court has said that the matter lies on the administrative side. That is an important cue. If the door of judicial review is closed for now, the responsibility shifts squarely to the institution itself. Administrative finality cannot mean administrative infallibility. It must mean administrative correction. When a court registry discovers that a matter was listed before the wrong bench, the solution is not to defend the listing. The matter is placed before the proper bench. When an order is issued without notice to a necessary party, the remedy is recall. Institutions routinely set their own house in order. That is not weakness. It is maturity.

The Madras High Court collegium today stands in a different position. Its composition is no longer in doubt. Justice Nisha Banu has transitioned out of that High Court. The current collegium is properly constituted according to prevailing norms. The cleanest way to address the controversy is straightforward. The current collegium should meet again, in its undisputed composition. It should place before itself the same materials that were earlier considered. It should deliberate afresh. At the end of that exercise, it may choose to reiterate the very recommendations already made. Or it may decide to make fresh recommendations. Either course is open. What matters is that the decision emanates from a collegium whose composition is beyond question. The danger otherwise is of a wrong precedent being set and further deviations being winked at. The second danger is that someone in the Supreme Court collegium or in the Government of India may at a later stage, raise the same questions about a proper collegium recommendation from the High Court.

Asking for a reconvening of a competent collegium, is not a demand for dramatic self-flagellation. It is the administrative equivalent of President Obama retaking his oath. No one suggested that the first oath was void. But repeating it removed doubt. Likewise, reconvening the collegium does not imply that earlier recommendations were substantively flawed. It simply ensures that they are procedurally unimpeachable.

Constitutional governance depends as much on form as on substance. We have seen in countless judgments that arbitrariness is antithetical to equality. We have insisted that power must be exercised according to known norms. The collegium system, often criticised for opacity, cannot afford to appear casual about its own rules. If the Supreme Court has chosen restraint in the name of administrative autonomy , that autonomy must be exercised with scrupulous care. The answer to judicial deference is not defensiveness. It is self-correction.

There can be no shortcuts in solemn constitutional processes. The composition of a decision-making body is not a technicality. It is the source of its legitimacy. The Madras High Court collegium now has an opportunity. By reassembling in its present, proper form and reconsidering the matter, it can administratively set things right. It can either reaffirm its earlier choices or chart a different course. In either event, the outcome will rest on firmer ground. Abundant caution is not a sign of doubt. It is a mark of respect for constitutional method. And in matters as vital as judicial appointments, method is everything.

The Author a senior advocate at The Supreme Court of India. Views are personal