Recommended, reiterated, rearranged: How the collegium lost its own prescription

The collegium is the Supreme Court’s internal group for recommending judicial appointments and transfers. It is led by the Chief Justice of India and includes the four senior-most judges. Its importance comes from the principle that judges should be selected without political control. The article therefore calls it the doctor writing the prescription, not the pharmacist filling it.

The collegium recommends candidates for the Supreme Court and High Courts. In January 2018, it recommended Justice K.M. Joseph and Ms. Indu Malhotra together. The Government notified one name, returned the other, and later appointed Justice Joseph after the collegium reiterated his recommendation. The government also affected the order in which judges took office.

Thus, the collegium has formal recommending power, but not complete control over appointments. The article argues that selective delays, returns, and rearrangements weaken the practical force of its recommendations. It says judges established their authority to prescribe but did not ensure that the prescription was honoured.

The article describes several forms of government intervention. Recommendations were delayed, returned, separated from batches, reordered, and sometimes changed after reconsideration. This matters because the collegium’s claim to primacy becomes less meaningful if the Government can decide which name moves first or whether a file moves at all.

In January 2018, the collegium recommended Justice K.M. Joseph and Ms. Indu Malhotra together. The Government notified one and returned the other. Justice Joseph was eventually appointed after reiteration, but took his oath below judges recommended six months later. In 2019, Justice Akil Kureshi’s proposed posting was changed from Madhya Pradesh to Tripura after the Government sat on the file.

Other examples include a seven-month silence over Justice S. Muralidhar’s proposed transfer and a transfer of Justice Atul Sreedharan changed from Chhattisgarh to Allahabad after government reconsideration. In the advocates’ cases, one name was appointed while four others continued waiting. The article presents this as selective processing rather than a single uniform response.

The article does not provide a complete count of every candidate affected. Its named examples include two Supreme Court elevation candidates, Justice Akil Kureshi, Justice S. Muralidhar, Justice Atul Sreedharan, five advocates reiterated in January 2023, and three lawyers recommended for Delhi in August 2024. That is at least 14 candidates in the cases described, though some examples involve changes rather than continuing waits.

The clearest delay involved five advocates. Only Mr. Somasekhar Sundaresan was appointed, ten months after the January 2023 reiteration. The other four were still waiting nearly two years later, while juniors recommended after them had taken oath. Ms. Shwetasree Majumdar, one of three lawyers recommended for Delhi in August 2024, waited almost a year without an explanation and withdrew her consent in July 2025.

The article also records a seven-month silence on Justice S. Muralidhar’s proposal. Justice K.M. Joseph waited until August 2018 after his January recommendation. These examples show that waiting periods ranged from months to nearly two years, without a stated overall total.

Selective delay changes more than an individual career. It can disturb seniority, separate candidates recommended together, and make judicial advancement depend on administrative timing. The article’s central concern is that the collegium may recommend a sequence, but the Government can alter that sequence by returning, holding, or splitting files.

Justice K.M. Joseph was recommended with Ms. Indu Malhotra in January 2018. The Government notified one name and returned the other. When Justice Joseph was finally appointed after reiteration, he took his oath below two judges recommended six months after him. Four advocates similarly remained waiting while juniors recommended behind them took oath. Ms. Shwetasree Majumdar withdrew her consent after nearly a year.

These actions can leave candidates uncertain, weaken the meaning of seniority, and frustrate the courts’ own choices. The article records a proposed transfer being recalled after no reply for nearly seven months. If such practices continue, recommendations may become negotiable rather than authoritative, while vacancies and court leadership changes remain unresolved.

The Second Judges case in 1993 gave primacy to the Chief Justice of India’s opinion when formed with senior colleagues. It also held that a recommendation returned and then reiterated must be appointed. This shifted the decisive weight away from the Government and toward the judiciary’s own assessment of candidates.

The Third Judges case, five years later, clarified the collegium’s membership. It settled the group as the Chief Justice of India and the four senior-most Supreme Court judges. In October 2015, the Court struck down the constitutional amendment creating the NJAC by four votes to one. It held that judicial independence is part of the Constitution’s basic structure and that a Law Minister at the selection table was one politician too many.

Together, these decisions made judicial control over recommendations a constitutional safeguard, not merely an administrative preference. The article also notes that in April 2021 the Court prescribed a three-to-four-week timetable for notifying a reiterated name. Yet the examples show that enforcing this primacy remains difficult.

The National Judicial Appointments Commission, or NJAC, was the alternative arrangement Parliament tried to create for judicial appointments. Unlike the collegium model described in the article, it would have placed a Law Minister at the selection table. That would have given a political representative a direct role in choosing judges.

The article says Parliament attempted this change through a constitutional amendment. In October 2015, the Supreme Court struck the amendment down by four votes to one. The Court held that judicial independence forms part of the Constitution’s basic structure. It also described the Law Minister’s presence in the selection process as one politician too many.

The NJAC therefore would have changed the balance from a judge-led recommendation system toward a process involving the political executive. The judgment preserved the collegium’s primacy, but the article highlights an unresolved problem: even after the Court’s ruling, the Government can delay, return, or rearrange recommendations before appointments are completed.

Judicial independence depends partly on judges being selected through a process insulated from political pressure. If the Government can control appointments, it may influence the composition, seniority, or leadership of courts. The article presents the collegium as a safeguard against that risk, while warning that delay and rearrangement can still undermine its practical authority.

The Supreme Court’s 2015 NJAC judgment made the connection explicit. It struck down the amendment by four votes to one, holding that judicial independence is part of the Constitution’s basic structure. The Court considered a Law Minister at the selection table unacceptable. Earlier, the Second Judges case had given primacy to the Chief Justice’s opinion formed with senior colleagues.

The article’s examples show why the issue remains live. Justice Joseph’s oath came after judges recommended later, and several advocates waited while juniors took office. Formal judicial control may protect independence in principle, but selective government action can still affect careers, seniority, and the courts’ functioning.