In the interviews prior to his forthcoming memoir, former Supreme Court judge Sanjay Kishan Kaul questioned the practice of seeking the government’s approval for judicial appointments before the collegium had formally deliberated. His critique was on the independence of the selection process. The collegium’s freedom to make its own choices is compromised if the executive vets the entire list beforehand. He felt that former Chief Justice D.Y. Chandrachud was more deferential to the government on appointments than he ought to have been.Justice Kaul also narrated an instance when the government, as the chief justice conveyed to him, asked whether more representation of minority faiths was necessary and asked about the caste to which a candidate’s family belonged before conversion. The candidate was not a Muslim, Justice Kaul said, and was eventually elevated with the government’s approval. But his account poses the obvious question about appointments whose rationale is not revealed: how can the public know whether the collegium has exercised its independent judgment when the executive objects to a candidate?That question is immediately relevant in the latest selection for the High Court of Jammu & Kashmir and Ladakh. In April, the high court collegium, then headed by Chief Justice Arun Palli, recommended ten advocates and one judicial officer. Among the advocates was the ex-advocate general Jahangir Iqbal Ganai. His name does not appear among those approved on October 29.The statement does not explain Ganai’s absence. That silence lends weight to Justice Kaul’s criticism because it leaves the public unable to assess whether the collegium reached its decision independently of the government. Judicial officer Yash Paul Bourney, on the April list, is already on the high court’s official list of sitting judges, appointed on September 19.The question of diversityThe high court collegium and the Supreme Court collegium should clarify the role of diversity in selecting candidates. Under the Department of Justice Memorandum of Procedure, the chief justice of the high court recommends names in consultation with the court’s two senior-most judges. The Union law ministry reviews the recommendations and available material and forwards them to the chief justice of India. The chief justice examines the recommendations along with two senior-most judges of the Supreme Court. The recommendations are then sent back to the Union government for the president to appoint. Each collegium has a distinct role: the high court collegium chooses whom to recommend, and the Supreme Court collegium chooses which recommendations to endorse. In its advisory opinion in In re Special Reference No. 1 of 1998 (Third Judges Case), the Supreme Court has laid down the procedure. The chief justice of India and the two senior-most judges decide appointments to the high courts. The collegium currently includes Chief Justice of India Surya Kant and Justices Vikram Nath and B.V. Nagarathna. The same opinion expects it to give due weightage to the opinions of Supreme Court judges conversant with the affairs of the concerned high court.In this category, there are two sitting judges. Justice N. Kotiswar Singh was chief justice of the Jammu and Kashmir high court from February 2023 to July 2024. The same collegium, headed by Justice Palli, recommended Ganai before he was elevated to the Supreme Court in June. The public record does not say whether either was consulted on this list, nor what either advised.Ganai has spent his career working for the state’s government and in its courts. He became advocate general on June 23, 2015, when the coalition of the Peoples Democratic Party (PDP) and Bharatiya Janata Party (BJP), headed by Mufti Mohammad Sayeed, was in power. That summer, the high court designated him a senior advocate, and the Press Trust of India reported him as the youngest lawyer in the State to hold the post. He resigned on February 12, 2016, when the then Governor of J&K, N.N. Vohra, who took over after Sayeed’s death, asked all political appointees to resign. He returned in June 2016 when Mehbooba Mufti headed the next coalition government. In December 2015, he and the late Fali S. Nariman filed the State’s affidavit defending Article 35A, which allowed the State to define its permanent residents until it was swept away in August 2019. Ganai resigned again on June 21, 2018, two days after BJP quit the coalition. In April this year, Chief Justice Palli, in consultation with Justices Sanjeev Kumar and Sindhu Sharma, settled the high court’s list, and Ganai’s name figured on it, Kashmir Life reported.A two-member bench of the Central Administrative Tribunal (CAT), Jammu, on October 7 imposed a Rs 10,000 fine on Ganai while hearing a promotion dispute. The order said his submissions began with his video off, and when he switched it on after repeated requests, he was not in the prescribed uniform. “He seems to be unapologetic for his appearance without uniform,” the order states, adding that “he made derogatory remarks upon the court”. The high court stayed the order on October 13 and told the two members and Ganai to meet the judges in chambers on October 21. The bench of Justices Sanjeev Kumar and M.A. Chowdhary observed that “the members, despite having been served dasti, have decided not to appear” on that day. It said the costs were “in complete breach of principles of natural justice”.Also read: Full Text | Ex-SC Justice Kaul on Why CJI Chandrachud ‘Did Not Live Up’ to His ExpectationsIt found that the dispute could have been avoided if the members had “shown some level of restraint and maturity”. It reminded the bar that “the senior advocates have a higher responsibility” to maintain court decorum. The high court then quashed the tribunal’s order against Ganai, calling it “a very small matter” which should have been resolved in open court. Eight days later, the Supreme Court collegium interviewed the candidates for about ten minutes each, Daily Excelsior reported. It is not reported whether Ganai was one of them, and the statement that followed did not mention his name, without explanation.Tahir Majid Shamsi, the deputy solicitor general of the Union government at Srinagar, is one of two Muslims approved by the collegium. The law ministry extended his term until 2028 last December. The list also includes Vishal Sharma, the Union’s assistant solicitor general at Jammu. For a long time, the Union has elevated law officers to high courts. Shamsi, who was designated senior advocate by the high court in August 2025, too has a claim to the bench.What facts, if any, carried weight with the collegium, and whether Ganai’s name was rejected or only deferred, only the collegium can say. A two-page resolution passed on March 12, 2024, by a collegium led by the then Chief Justice of India D.Y. Chandrachud recommended a judicial officer, Mohammad Yousuf Wani. It said it had consulted Supreme Court judges familiar with the high court and read comments from the Department of Justice. It also explained why it agreed with the high court’s decision to overlook a senior female judicial officer who sought consideration.In November 2023, the Supreme Court collegium included “representation of minorities” among the factors to consider in selecting judges. The resolution also talked about gender diversity and appointments from depressed and backward sections. Among the signatories was Justice Surya Kant, now chief justice of India. Its stated commitment informs scrutiny of the collegium’s latest recommendations for the High Court of Jammu & Kashmir and Ladakh. The resolution concerned appointments to the apex court, but the institutional reason for considering inclusion applies just as much to High Courts, where citizens first approach for constitutional remedies against many exercises of state power.The October 29 statement approves the appointment of nine advocates. Of the nine, only Tahir Majid Shamsi and Smt. Tabasum Zafar are Muslims. That is just over 22 per cent of this batch for a court serving a region with a largely Muslim population. The statement identifies them but does not explain how the collegium viewed the court’s composition or the consequences of its decisions for representation.The high court has jurisdiction over Jammu and Kashmir and Ladakh. According to the 2011 Census figures reproduced in the government’s statistical digest (p.40), the Muslim share of the population of the former state, which included Ladakh, was 68.31 per cent and Hindus 28.44 per cent, with other religions and those who did not state their religion making up the rest.A high court does not need to mirror the religious composition of the population it serves. Still, a significant imbalance requires explanation in terms of how the appointment process reflects the judiciary’s professed commitment to diversity and inclusion.Also read: Kashmir: Judicial Appointment Clearance by SC Collegium Sparks Questions Over Regional RepresentationThe maths on the bench sharpens the point. The high court has 25 sanctioned posts and 14 judges in working strength. Based on the list released in August, updated to include Chief Justice Pushpendra Singh Bhati and Justice Bourney, who joined in September, five of the 14 are Muslims. They are Mohd. Akram Chowdhary, Moksha Khajuria Kazmi, Wasim Sadiq Nargal, Mohd. Yousuf Wani and Shahzad Azeem. If the Union government approves all nine names, the court will have 23 judges, of whom seven are Muslims, or about 30.4%. Had Ganai also been recommended, it would have been 8 out of 24.Articles 124 and 217 contain no reservation, and the case for a representative bench rests on public confidence. At least on paper, the Union government accepts the principle. Parliament was informed that it requests the chief justices of the high courts to give “due consideration” to Scheduled Caste, Scheduled Tribe, Other Backward Classes, minority and women candidates. The same reply in January 2026 also said that of the 847 high court judges appointed since 2018, only 46 belonged to the minority communities. In 2023, the parliamentary standing committee on law and justice, headed by the late Sushil Kumar Modi of the Bharatiya Janata Party (BJP), went a step further. It found the higher judiciary to be in a “diversity deficit”.The case is strongest before this court. Its docket contains habeas corpus petitions against detention under the Public Safety Act and bail pleas under the Unlawful Activities (Prevention) Act. It also addresses land and service disputes that arose after the State’s reorganisation in 2019. It is mostly Muslims who go to court against the state in such matters, in the Valley where Muslims are in overwhelming majority.The larger implication of the appointment of high court judges A bench that seldom has a judge from their own community can still do justice to their cases. It will be more difficult, however, to convince them that it has. The high court collegium, by all accounts, seemed to get this in April and tried to represent every region and section of society.The list includes real achievements that deserve credit. If appointed, Tabasum Zafar will be the first woman from the Valley to sit in a court set up in 1928. On September 5, the regulation enabling a high court bench in Ladakh came into effect, and on the bench, Namgyal Wangchuk gives Ladakh a voice of its own. Regional balance is a legitimate concern for a court with wings in Srinagar and Jammu. The Jammu division accounts for about 43% of the population the court serves. The bench can house Jammu’s lawyers and Valley’s Muslims together. The two claims clash only when few posts are available, and this round had ten vacancies to fill.If her appointment goes through, Zafar’s recommendation would make her the first Kashmiri woman advocate to be elevated to a high court. That prospect shows how different forms of exclusion can intersect. The appointment may improve women’s access to the Bench even as the wider batch raises questions about the composition of religious representation.Another concern, apart from the prospect of Zafar being on the bench, is the limited number of women in the bodies that select judges. In her Supreme Court Observer series on the collegium, Shalom Gauri’s reconstruction of membership records showed that only six women had served on the Supreme Court collegium since 1993, making up less than seven per cent of its members. The study examined how women’s chances of gaining the seniority needed to be involved in these decisions are limited by later appointments and shorter time on the bench.Legal scholarship helps explain why these decisions reverberate beyond one court. In his 2023 study of the collegium, Rangin Pallav Tripathy examined how appointment power was distributed among its members. He explained that high court appointments determine the pool from which the Supreme Court will draw judges in the future. The timing of an appointment also affects seniority and, in turn, future opportunities. Thus, an imbalance at entry can persist through the system long after the original selection has fallen from public discussion.The October 29 statement is reasonless, but it is part of a larger retreat from disclosure. In her Supreme Court Observer study, published in April 2026, Shalom Gauri noted that after November 28, 2024, collegium statements stopped mentioning the judges involved or the rationale behind their recommendations. It complicates assessment of how the collegium is living up to the commitment to inclusion it articulated explicitly in November 2023. V. Venkatesan is contributing editor, Supreme Court Observer.