The survival of a constitutional democracy is rarely determined by the grandiloquence of its text alone. It rests, instead, on the silent, sturdy pillars of convention - the unwritten rules of the game that provide the necessary ballast to the written word.
When these conventions are bypassed sub silentio, the damage is not merely procedural; it is ontological. The current complexity surrounding the Madras High Court Collegium is a quintessential example of this "creeping non-adherence," where the failure to follow settled protocol threatens to hollow out the very independence the judiciary so fiercely guards.
At the threshold, we must sum up the legal controversy: the composition of the Collegium itself. The legal position, as settled by a catena of decisions including MK Sasidharan v. The Hon’ble Chief Justice of India is that a judge’s transfer is not an instantaneous metamorphosis. It is a process that concludes only when the judge assumes charge in the transferee court. Until that precise moment of functus officio in the parent court, the judge remains a constituent member of that institution, entitled to all the perquisites and powers, including of their seniority.
In the Madras context, we are faced with a stark departure from this norm. At the time the relevant recommendations were being finalised, Justice J Nisha Banu - the second senior-most judge of the Court - was still, in the eyes of the Constitution, a sitting judge of the Madras High Court. The issuance of a transfer order, or subsequent extensions to join, does not create a "civil death" of her status in Madras.
The first question of law is fundamental: can a recommendation made by an improperly constituted Collegium be sustained? The Second and Third Judges cases were not mere exercises in judicial expansionism; they were built on the normative framework of "plurality of thought." The Chief Justice of a High Court does not act as a persona designata; they act as the head of a Collegium.
If a senior judge, who is constitutionally present and available, is excluded in favour of a junior judge - Justice MS Ramesh (who retired on December 26, 2025) - the very "DNA" of the Collegium is altered. Such an exclusion, especially when left unexplained, creates a jurisdictional defect. Seniority in this context is not a matter of ceremonial ego; it is a constitutional safeguard intended to ensure that recommendations are the product of collective institutional wisdom rather than individual preference.
The second, perhaps more distressing, issue concerns the merit-cum-neutrality of the proposed list. Reports suggest that of the 13 names recommended from the Bar, several possess discernible political lineages with the ruling party at the Centre and its allies. While it is consistently maintained that a lawyer’s previous political brief or affiliation should not be an absolute bar to elevation (we do not live in a monastic vacuum), the clustering of such names is what triggers institutional alarm.
The Collegium system was birthed to insulate the judiciary from the executive’s overreach. For this reason, the National Judicial Appointments Commission (NJAC) was held to be unconstitutional. If the selection process begins to mirror the political leanings of whichever power holds sway at the Centre or the State, the very raison d'être of the Collegium is defeated. The obligation to reassure the public lies not in the disclosure of every confidential minute, but in a transparency of process that demonstrates a rigorous, merit-based filtration and a commitment to social justice and representation.
We must also confront the diminishing dialogue between the judiciary and the executive. Consultation, as envisioned under the Memorandum of Procedure, is a collaborative process between the executive and the judiciary, but not a dispensable ritual. When the State government raises specific, principled objections regarding the composition of the Collegium, those objections cannot be met with a stony silence. Opacity is the enemy of legitimacy. A system that moves from reasoned deliberation to unexplained fiat risks losing its moral authority.
There is a profound irony in the fact that this distortion in the High Court Collegium is a direct fallout of a transfer recommended by the Supreme Court Collegium. If the "sentinel on the qui vive" fails to observe the discipline of its own norms, the entire hierarchy of judicial appointments is thrown into disarray. We cannot have a system where rules are lex specialis for some and lex generalis for others.
Regarding the improper constitution of the Collegium, a public interest litigation (PIL) was filed and numbered during the December vacation, as the list of 13 proposed names are fundamentally flawed. When mentioned in open court, the vacation bench refused to take it up, stating that the Chief Justice had specifically directed that the matter not be heard by it. Subsequently, the PIL case number (WP 50487/2025) was removed and reassigned to another matter. The present status of the aforesaid PIL remains unknown. Among members of the Madras Bar, this deviation is raising serious concerns regarding a blatant departure from procedures established by law.
Institutions are not weakened by admitting a procedural lapse; they are weakened when legitimate legal questions are met with a shroud of secrecy. The erosion we see today is quiet, but its resonance is loud. It is a departure from the constitutional morality that Dr BR Ambedkar so presciently warned us about.
One must also note, with a degree of professional sadness, the silence of those retired judges who once occupied the highest seats of justice. To remain silent when the very integrity of the process is under scrutiny is to be complicit in the erosion. The plea here is not for a radical overhaul, but for a fidelity to convention. The Collegium system, being a creature of judicial interpretation, survives only as long as it commands the trust of the stakeholders. That trust is built on the twin pillars of seniority and reasoned process. Without them, we are left not with a system of laws, but a system of contingencies.
Arun Ponnuswamy is an advocate practicing in the Madras High Court.
Views are personal.