The Supreme Court’s decision to dismiss a writ petition questioning the Madras High Court Collegium’s composition - on the ground that the issue is “non-justiciable” - invites reflection not merely on the outcome, but on the constitutional reasoning that sustains it.

The Court observed that such matters are to be considered on the administrative side and, therefore, do not warrant judicial intervention.

Judicial restraint, particularly in matters of internal governance, is a value deeply embedded in constitutional adjudication. Yet, restraint cannot be conflated with withdrawal. The Constitution does not recognise categories of power that are insulated from scrutiny merely because they are described as “administrative”. Indeed, much of Indian constitutional law has evolved precisely by questioning administrative actions when they affect constitutional structures, rights or institutional legitimacy.

The Collegium system itself is a product of such judicial scrutiny. In the Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993), and later reaffirmed in the Third Judges Case (1998), the Court asserted judicial primacy in appointments, not as an end in itself, but as a constitutional necessity to preserve independence. Yet, in doing so, the Court never suggested that Collegium functioning would exist beyond constitutional discipline. On the contrary, the legitimacy of the system was implicitly tethered to convention, fairness and institutional propriety.

The present controversy arose from the non-inclusion of Justice Nisha Banu in the Madras High Court Collegium at a time when she continued to function as a judge of the Madras High Court, notwithstanding a transfer notification. The petition did not seek a direction on appointments, nor did it invite the Supreme Court to substitute its wisdom for that of the Collegium. It raised a narrower, yet significant, question: whether the Collegium of Madras High Court, as constituted at that moment, adhered to its own accepted “norms of seniority” and participation.

Indian jurisprudence has long recognised that administrative actions are subject to judicial review when they are arbitrary, unreasonable or violate constitutional principles. In EP Royappa v. State of Tamil Nadu (1973), arbitrariness itself was recognised as antithetical to equality under Article 14. It further noted,

“In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.”

Later decisions - such as Maneka Gandhi and Rameshwar Prasad - have consistently ruled that form cannot defeat substance when constitutional values are implicated.

The Collegium’s composition is not a matter of routine administration. It determines who participates in decisions affecting the structure and future of the judiciary. When questions arise regarding exclusion from that process - particularly where seniority and convention are involved - the issue transcends internal housekeeping. It enters the constitutional realm, where “fairness of process” assumes significance independent of outcome.

Tamil Nadu’s judicial history lends particular resonance to this concern. The Madras High Court is among the oldest constitutional courts in the country, with a tradition of institutional dissent, social justice jurisprudence and engagement with marginalised voices. Its contribution to constitutional law - from reservations to linguistic and minority rights - has often been shaped by judges acutely sensitive to procedural fairness and representation. In such a context, deviations from established norms, even if inadvertent, warrant careful institutional introspection.

It is also relevant that the Collegium system has, over time, attracted criticism for opacity. In NJAC case, while striking down the National Judicial Appointments Commission, the Supreme Court itself acknowledged the imperfections of the Collegium and emphasised the need for greater transparency and accountability. Subsequent observations by constitution benches have reiterated that independence does not imply insulation from scrutiny and that trust in institutions is sustained by reasoned processes.

To declare the formation and functioning of the Collegium as entirely non-justiciable risks foreclosing even limited review of procedural irregularities. Such an approach may inadvertently create a constitutional vacuum, where concerns about fairness are left without remedy. The Constitution does not compel courts to intervene in every administrative decision, but it does expect them to remain open to examining whether constitutional discipline has been observed.

There is also a conceptual difficulty in relegating the matter to the “administrative side”. In Collegium matters, the judiciary is both actor and arbiter. To deny judicial review altogether is to leave no room for a constitutional forum to examine alleged departures from established norms. That outcome sits uneasily with the principle that no power -however well-intentioned - is beyond constitutional accountability.

None of this suggests that the Court ought to have interfered with the Collegium’s recommendation. The wisdom of restraint in appointments is well understood. But restraint need not take the form of non-justiciability. Courts have, in the past, entertained challenges only to the extent of examining procedural legality, without entering the merits. Such calibrated review preserves autonomy while affirming constitutional values.

The strength of India’s judiciary has never lain in asserting immunity, but in demonstrating constitutional confidence - the confidence to acknowledge scrutiny without perceiving it as threat. Particularly in matters of internal governance, a transparent engagement with constitutional principles strengthens, rather than diminishes institutional authority.

In the end, the question is not whether administration must yield to adjudication, but whether constitutional values must yield to administrative convenience. The Constitution, quiet yet insistent, suggests otherwise.

Arun Ponnuswamy is a Chennai-based lawyer.

Views are personal.