By Sanjay Raman Sinha
Last week, a voice from within the Supreme Court disrupted the usually choreographed harmony of judicial consensus. The dissonance was unmistakable. The anxiety palpable. And the subtext carried an undisguised alarm.
In an uncommon display of public dissent, Justice Ujjal Bhuyan recently questioned the Collegium’s decision to transfer a High Court judge at the request of the central government. His remarks—measured yet pointed—signalled discomfort not merely with a single transfer, but with a process increasingly perceived as pliable under executive pressure.
Justice Bhuyan’s public disapproval of a Collegium decision that effectively greenlit a government-backed move does not augur well for an institution born out of fierce resistance to executive overreach. The Collegium itself emerged from prolonged constitutional battles, designed precisely to firewall judicial appointments from political influence.
This is not the first time the Collegium’s inner cohesion has cracked. Not long ago, Justice BV Nagarathna dissented against the elevation of Justice Pancholi to the Supreme Court, raising questions about institutional consistency and internal accountability.
Dissent against the amorphous entity often referred to as the “Supreme Court administration” has surfaced in multiple forms over the years. At times, the chief justice has been in the dock; at others, the Collegium itself.
The most dramatic rupture came in January 2018, when four senior-most judges—Justices J Chelameswar, Ranjan Gogoi, Madan Lokur, and Kurian Joseph—held an unprecedented press conference. They accused the then Chief Justice of India, Dipak Mishra, of arbitrary case allocation, alleging that sensitive matters were routinely assigned to preferred, often junior, benches in violation of seniority norms. The spectacle shook public confidence in the Court’s internal governance.
Executive interference—or the perception of it—has also shadowed judicial appointments. In 2018, Justice KM Joseph’s elevation to the Supreme Court was inexplicably delayed, widely seen as retaliation for his judgment quashing President’s Rule in Uttarakhand.
Earlier, in 2016, Justice J Chelameswar withdrew from Collegium meetings altogether, insisting that proceedings be formally recorded to ensure accountability and transparency.
The stalled appointment of Senior Advocate Saurabh Kirpal to the Delhi High Court—despite repeated Collegium recommendations—sparked further controversy. Objections reportedly stemmed from his sexual orientation and his partner’s foreign nationality, raising troubling questions about prejudice entering constitutional decision-making.
More recently, the transfer of Justice Akil Kureshi from Gujarat to Bombay, followed by his non-elevation to the Supreme Court, is believed to have caused significant friction within the Collegium. Many saw the decision as a concession to the government. During his tenure, Justice RF Nariman reportedly blocked the elevation of judges junior to Justice Kureshi, leading to a prolonged deadlock in Supreme Court appointments.
Taken together, these episodes lay bare not only internal dissension within the Collegium, but also the subtle and sustained ways in which executive pressure bears upon the judiciary.
Constitutionally, judicial appointments were envisaged as a consultative process. Article 124 provides that the president shall appoint Supreme Court judges after “consultation” with judges deemed necessary. However, the landmark Three Judges Cases decisively tilted the balance in favour of the judiciary, vesting primacy in the Collegium to safeguard judicial independence.
When the BJP-led government assumed office in 2014, one of its earliest institutional reforms was an attempt to replace the Collegium with the National Judicial Appointments Commission (NJAC) through the 99th Constitutional Amendment. The Supreme Court struck it down in 2015, ruling that the NJAC compromised judicial independence.
Since then, confrontation has given way to attrition. The executive has increasingly relied on “pocket vetoes”—sitting indefinitely on recommendations, selectively clearing some names while quietly ignoring others.
As the Supreme Court itself observed in Ram Jawaya Kapur, the Constitution does not recognise a rigid separation of powers; instead, it permits a functional overlap. But this blending, when untempered by safeguards, is fertile ground for conflict.
If institutional credibility is to be preserved, two reforms are imperative. First, the long-pending Memorandum of Procedure (MoP) between the judiciary and the government must be finalised, with clear timelines to prevent arbitrary delays. Second, the Collegium must embrace greater transparency and documented decision-making to prevent public dissent and restore internal trust.
In the end, judicial independence cannot rest on convention alone. It requires a robust system of checks and balances—one strong enough to withstand both external pressure and internal fracture.
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