WHILE the Supreme Court and the Union Government are locking horns in matters concerning the appointment of judges to the higher judiciary, it has come out in the public domain that at-least on two occasions, the Supreme Court Collegium gave in to the wishes of the Union Government by recalling its recommendations for two names which were already reiterated by it.
This is quite strange and goes against what a bench headed by Justice Sanjay Kishan Kaul has been repeatedly telling the government – that once a name is reiterated, the appointment has to be made. In fact, the bench, which also comprised Justices Abhay S. Oka and Vikram Nath, pleaded ignorance of the Collegium's decision withdrawing the reiterated names and, thus, it recorded in its order passed on December 8:
"We are not aware in what special circumstances were these names sent back a second time and dropped but we are sure the Collegium will keep this thought process in mind while now dealing with the second time reiterated names i.e, the judgment of the Court extracted aforesaid."
The bench did not stop there. It also said that the sending back a second time of reiterated names would be in breach of the decision of the Constitution Bench in the Second Judges case in 1993, which mandates that if the recommendation is unanimously reiterated, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made.
Justice Kaul, who is now a Collegium member, would certainly not know the decisions of the Collegium taken in 2019 and 2021 when he was not a Collegium member, since the correspondence between the government and the Chief Justice of India ('CJI'), and the record of the consultation process are some of the best guarded secrets of this country, as pointed out by Justice J. Chelameswar in his dissent in the National Judicial Appointment Commission ('NJAC') case.
The Attorney General for India sought to justify the return of the reiterated names by giving instances when Collegium itself accepted the government's objection to the reiterated names. The Collegium headed by CJI Ranjan Gogoi and N.V. Ramana in 2019 and 2021 respectively decided to recall the reiterated names of advocate Amit Negi (for elevation as a judge at the Allahabad High Court) and advocate K.K. Paul (for elevation as a judge at the Kerala High Court). This certainly came out as surprising disclosure for the bench, which said in the order "We are not aware in what special circumstances were these names sent back a second time".
So what is happening is that on the judicial side, the Supreme Court is saying that once names are reiterated, the government has to notify their appointment, but the collegium on the administrative side, instead of taking exception to the government returning the reiterated names, is accepting the government's objections.
The modus operandi is quite clear now. First, the government keeps the file to itself for an indefinite time akin to a pocket veto, without sending its reservation against the name(s) sent by the Collegium. This not only disturbs the potential seniority of appointees- a relevant factor taken into consideration by the Collegium while making the recommendation, but it also brings humiliation to the person concerned. Sometimes an individual chooses to withdraw their consent, finding their prospect marred by the clouds of uncertainty.
Second, even if the collegium considers the objections raised by the government and still decides to recommend the name(s) objected to by the government, the latter, instead of approving the name as envisaged in the Second Judges case, sends back the recommendation to the Collegium, which is something not contemplated both in the Second and Third judges cases as well in the NJAC judgment. And then there are two instances referred to above where Collegium itself seems to have acted in breach of the Second Judges case.
As per the data in possession of the author, the names, which have been returned to the Collegium by the government despite the Collegium's reiteration, pertain to the High Court of Allahabad (five names), the High Court of Calcutta (two names), the High Court of Karnataka (one name) and the High Court of Kerala (two names).
The case of advocates Negi and Paul is somewhat strange.
On August 30, 2016, the Collegium cleared the name of Negi for elevation to the Allahabad High Court. It was reiterated on November 15, 2016. However, after six months, the Collegium decided to withhold its recommendation in June 2017 on the basis of certain inputs relating to the filing of a first information report ('FIR') against him. Subsequently, it was brought to the notice of the CJI that the high court quashed the FIR and no appeal had been preferred by the Uttar Pradesh government against the decision of the high court, and the same appears to have been accepted by the Uttar Pradesh government. Accordingly, the Collegium on August 1, 2018 passed a resolution to process his appointment most expeditiously. Strangely, for reasons not available in public domain, the Collegium decided to recall its recommendation on January 16, 2019. Former CJI Gogoi then headed the Collegium.
Regarding Paul, the Collegium on March 25, 2019, found it suitable to recommend his name. On March 2, 2021, the Collegium reiterated his name. Yet again, the government referred back the reiterated proposal to the Collegium for reconsideration. Eventually, the Collegium recalled its recommendation on August 12, 2021, for reasons not known. Former CJI Ramana then headed the Collegium.
Presently, a total of ten names for different high courts which were reiterated by the Collegium are lying pending with the Collegium as the government returned them a day before the hearing of the judicial appointments case on November 28.
Advocate Sanjeetha Kallor Arakkal's name was recommended by the Collegium on September 1, 2021, for the Kerala high court. Her name got reiterated on November 11, 2021. Advocate Aravinda Kr. Babu Thavarakkattil was recommended by the Collegium on September 1, 2021, and the same was reiterated on November 11, 2021. The government has returned both names to the Collegium.
In the context of the Karnataka high court, the name of advocate Nagendra Ramachandra Naik was reiterated by the Collegium twice (perhaps unprecedented). The Collegium first recommended his name on September 3, 2021. The same got reiterated on March 2, 2021, and the Collegium iterated the name on September 1, 2021.
With regard to the Calcutta high court, the name of two senior advocates, Amitesh Banerjee and Sakya Sen was recommended on September 24, 2019, and their names were reiterated on September 1, 2021, and October 8, 2021, respectively. Banerjee is a senior government standing counsel at the Calcutta high court for the state government and is a son of former Supreme Court judge, U.C. Banerjee, who headed a commission to inquire the fire in Sabarmati Express at Godhra in the state of Gujarat that led to 59 deaths. He concluded that the fire was accidental and not started by the Muslim mob.
Coming to the Allahabad High Court, four advocates, namely Shishir Jain, Rishad Murtaza, Dhruv Mathur and Vimledu Tripathi were recommended on August 24, 2021. By a separate recommendation, the Collegium on October 6, 2021, recommended the name of advocate Manu Khare. Khare is the son of former CJI V.N. Khare, who was very critical of the Gujarat Government for the 2002 riots. All five names were reiterated on July 14, 2022.
Murtaza had been government counsel during the Akhilesh Yadav-led government in Uttar Pradesh.
Tripathi was removed by the Adityanath-led Uttar Pradesh government as a government advocate following the Allahabad High Court's adverse comment against him. The high court had charged Tripathi of misleading the court by not letting the court know on May 4 that the Principal Secretary, Home had already taken a decision on May 3 refusing the sanction for prosecution against Adityanath, the main accused in a hate speech matter.
Besides the above names which came to be rejected by the Union Government despite reiteration by the Collegium, the names of a total of ten advocates were returned by the government to the collegium, which includes the name of openly gay advocate Saurabh Kirpal, whose name was recommended on November 11, 2021.
The government is also sitting over the files concerning the transfer of the Chief Justice from one high court to another, and the transfer of the judges from one high court to another. For instance, the Collegium on September 28, 2022, recommended the transfer of the Orissa High Court's Chief Justice Dr. S. Muralidhar to the Madras High Court and made a recommendation that the senior-most judge in Orissa, Justice Jaswant Singh be appointed as chief justice there.
The government has not notified the appointment till now. On the same day, the Collegium made a recommendation to transfer Justice Sanjaya Kumar Mishra from the Uttarkhand high court to the Jharkhand high court, Justice K. Vinod Chandran from Kerala to Bombay, and Justice Aparesh Kumar Singh from Jharkhand to Tripura. The files concerning their transfers are still gathering dust.
The primacy of the judiciary in the appointment of judges is no more res integra. In the Second judges case, a nine-judge Constitution bench categorically held that the opinion of the Chief Justice of India, formed on the basis of a consultative process based on the views of the senior judges, has primacy and no appointment of any Judge to the Supreme Court or any high court can be made, unless it is in conformity with the opinion of the Chief Justice of India. The reason behind this interpretation was that the Chief Justice is best equipped to know and assess the worth of the candidate, and their suitability for appointment as a superior judge; and it was also necessary to eliminate political influence even at the stage of the initial appointment of a judge.
Regarding the transfer of judges, the Constitution Bench held that the opinion of the CJI has not mere primacy, but is determinative in the matter of transfers of high court judges/chief justices.
In the Third Judges case, yet another nine-judge Constitution bench, on a reference made by the President under Article 143 of the Constitution, opined that the expression "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute "consultation" within the meaning of the said articles.
In the Second Judges case, the Supreme Court recognised the non-appointment on the ground of unsuitability for good reasons to be disclosed to the CJI in order to allow him to reconsider and withdraw his recommendation. The same decision further held that if the CJI does not find it necessary to withdraw his recommendation but judges of the Supreme Court who had been consulted in the matter, are of the view that the recommendation ought to be withdrawn then the non-appointment by the government is permissible in the public interest.
It is precisely for this reason that the second judges case uses the expression "unanimous' agreement of the judges" consulted by the CJI in order to reiterate a recommendation. It would thus follow that a recommendation to reiterate a name if not unanimous by the collegium judges, is not binding on the President. What is relevant to the present discussion is the observation made in the Second Judges case to the effect that if the recommendation is unanimously reiterated, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made.
The Third Judges case cemented the same as follows: "It may be that one or more members of the collegium that made a particular recommendation have retired or are otherwise unavailable when reasons are disclosed to the Chief Justice of India for the non-appointment of that person. In such a situation, the reasons must be placed before the remaining members of the original collegium plus another Judge or Judges who have reached the required seniority and become one of the first four puisne Judges. It is for this collegium, so reconstituted, to consider whether the recommendation should be withdrawn or reiterated. It is only if it is unanimously reiterated that the appointment must be made. Having regard to the objective of securing the best available men for the Supreme Court, it is imperative that the number of Judges of the Supreme Court who consider the reasons for non-appointment should be as large as the number that had made the particular recommendation."
The Executive and the Judiciary face-off that we are witnessing presently is nothing new. Even during the pre-collegium days, ideological considerations have had their way in the appointments of judges. American scholar George H. Gadbois who had come to India, conducted over 116 interviews with more than sixty-six judges of the Supreme Court of India. Of them, nineteen held the post of chief justice.
Gadbois learnt, as recorded by scholar and advocate Abhinav Chandrachud in his book 'Supreme Whispers' (2018), that in the 1980s Chief Justice Y.V. Chandrachud wanted to appoint M.N. Chandrukar, chief justice of Madras High Court, to the Supreme Court, but Prime Minister Indira Gandhi decided to reject that appointment merely because Chandrukar had attended the funeral of a Rashtriya Swayamsewak Sangh leader, M.S. Golwakar, who had been a friend of Chandukar's father.
The book mentions that in the 1970s and 1980s, the political ideological leanings of a judge were explicitly taken into account in determining whether he was fit for elevation to the Supreme Court.
In 1973, the then Prime Minister Indira Gandhi superseded three senior-most judges of the Supreme Court – Justices J.M. Shelaat, K.S. Hedge and A.N. Grover – for ruling against the government in the Kesavananda Bharati vs State of Kerala case, holding that Parliament had no power to alter "the basic structure of the Constitution".
Justice A.N. Ray, who was not even in line of becoming the CJI, superseded these three judges. He supported the stand of government arguing that there were no restrictions on Parliament's power to amend the Constitution.
In 2014, the current BJP-led government was formed at the Centre. The first case where the primacy of the CJI or the Collegium sought to be undermined was the Executive segregating the name of senior advocate Gopal Subramanium from the file of four names, which also included senior advocate Rohinton Nariman, Calcutta High Court Chief Justice Arun Mishra and Orissa High Court Chief Justice Adarsh Kumar Goel. Subramanium served as Solicitor General for the UPA Government during 2009-11.
What we are witnessing today is somewhat relic of the past. As in the post-1970s, the government had started openly looking at the ideology of judicial nominees and seeking out 'committed' judges, the present government, it seems, is adopting the same tactics by refusing to elevate those who it thinks are not committed judges.
In our constitutional scheme, the Supreme Court is the ultimate repository of interpretation of the Constitution. Article 144 of the Constitution of India requires all courts, tribunals, and the government to act in aid of the Supreme Court. It is only then as observed by Justice Rohinton Fali Nariman in Kantaru Rajeevaru versus Indian Young Lawyers Association Through Its General Secretary Ms. Bhakti Pasrija & Ors., this is then a constitutional scheme by which we are governed – the rule of law, as laid down by the Indian Constitution.