All appointments of judges to the High Court must be recommended by the Collegium, which comprises the Chief Justice of the High Court and the two senior-most judges. This recommendation is then sent to the State government. In turn, the State government can raise objections and seek clarifications. If the Collegium reiterates its choice or makes clarifications, the government is bound by the decision.
The clarification sought
On November 9, 2025, the Madras High Court Collegium recommended the names of six district judges for elevation to the High Court. The State government did not express any objections against the merit or suitability of the candidates, but instead, sought clarification on a fundamental procedural concern, i.e., the constitution of the Collegium itself.
Justice J. Nisha Banu, who had once headed the women lawyers’ association at the Madurai Bench of the Madras High Court, was elevated to the High Court Bench on October 5, 2016. In a career on the Bench spanning nine-plus years, Justice Nisha Banu is now third on the seniority list and the second most senior judge of the High Court. She is now a ‘Collegium judge’ at the Madras High Court.
However, on the recommendation of the Supreme Court Collegium, the Union Ministry for Law and Justice issued a notification dated October 14, 2025, transferring Justice Nisha Banu to the Kerala High Court and also to be placed ninth in seniority for reasons that are unknown. But the fact remains that Justice Nisha Banu did not proceed to join. Admittedly, Her Lordship is part of the Madras High Court and she continues to be a Collegium judge. Therefore, the State government had sought for clarification on the non-inclusion of Collegium judge Justice Nisha Banu and the inclusion of Justice M.S. Ramesh, the next seniormost judge.
The State government sought clarification on what the legal authority was for this substitution and whether it was supported by any Supreme Court direction or constitutional principle.
Rather than clarifying these concerns, the Collegium proceeded to recommend nine more advocates to fill additional vacancies, without clarifying the core issue of constitutional validity raised earlier by the State.
The essence of a constitutional democracy lies not merely in its written text but also in the integrity of its institutions. The judicial appointments process — safeguarded by the Supreme Court’s own jurisprudence through the Collegium system — stands at the heart of that integrity. Is the Collegium assuming that Justice Nisha Banu is not a part of the Madras High Court or has it already clarified the issue with any authority to proceed? Whatever it may be, the State is entitled to a clarification.
The Memorandum Of Procedure mandates that in the appointment of High Court judges, the Chief Justice of the High Court and the two seniormost judges of that High Court shall recommend the names. But here in the Madras High Court, a senior judge was ignored.
When procedure becomes substance
It is sometimes argued that procedural deviations are minor — that good candidates should not be denied due to “technicalities”. But in the constitutional architecture, procedure is not ornamentation. It is the foundation. The Collegium system itself is a creation, not of statute, but of judicial precedent and, therefore, must strictly adhere to judicially-developed norms to retain legitimacy.
When a judge who continues to wield administrative authority is excluded without recorded justification, and when another judge is included without jurisdictional support, the very decision-making entity becomes questionable. If the body making the recommendation is not properly constituted, the recommendations themselves risk becoming void. This is not a mere administrative lapse. It is a constitutional crisis because the integrity of judicial appointments cannot coexist with uncertainty over who is authorised to make them and where there is a situation where another Constitutional branch is in the dark.
The Collegium system itself is criticised for its lack of transparency, nepotism, under- or non-representation of deserving members across the sections, political influence and accountability.
The need for reforms
The Madras High Court Collegium must clarify with reference to law or procedure why Justice Nisha Banu was excluded and Justice M.S. Ramesh was included.
Silence is not an option when the issue strikes at the structural integrity of judicial independence. Otherwise it will leave a citizen to wonder whether there was ‘any motive’ at play. Whether discontented or contented, affiliated or unaffiliated, ideological or religious, a judge is a judge.
The High Court must note Kural 541, “Orndhukan Notaadhu Iraipurindhu Yaarmaattum Therndhusey Vaqdhe Murai (Search out, to no one favour show; with heart that justice loves Consult, then act; this is the rule that right approves”).
This situation should also prompt the Supreme Court to revisit the Collegium system and frame reforms that have been demanded for long, and ensure clearer rules of composition, published reasons, and mandatory disclosures.
The question is not whether these six district judges or the nine advocates are eligible candidates, though the selection of the nine advocates appear aligned with political preferences or ideological loyalty. The question is whether the method of their recommendations for elevation is in accordance with Article 217 of the Constitution of India and the Memorandum of Procedure which rules that the Chief Justice of the High Court and the two seniormost judges of the High Court shall recommend the names for appointment as High Court judges.
Once the constitution of the Collegium becomes questionable, the recommendations also become questionable and there is definitely a constitutional crisis between the two branches of the Constitution, the judiciary and the State government.
G.M. Akbarali is a former Judge, Madras High Court
Published – December 12, 2025 12:08 am IST
