Delhi HC dismisses appeal against non-disclosure of Collegium’s agenda with regard to elevation of HC Judges to SC

A single-judge bench of the Delhi High Court on Wednesday dismissed an appeal seeking to disclose a copy of the agenda discussed and the decision taken by the Supreme Court Collegium on December 12, 2018, regarding the elevation of Justice Pradeep Nandrajog, the then Chief Justice of the Rajasthan High Court, and Justice Rajendra Menon, the then Chief Justice of the Delhi High Court, to the Supreme Court, whose names were eventually dropped later.

Justice Yashwant Varma held that in the absence of any formal resolution coming to be adopted and signed by the members of the Collegium on December 12, 2018, the Central Public Information Officer [CPIO] of the Supreme Court had rightly taken the position that there was the absence of material that was liable to be disclosed.

Justice Varma was ruling on an appeal filed by transparency activist Anjali Bhardwaj against the decision of the Central Information Commission [CIC] on December 16, 2021, upholding the denial of the information by the CPIO.

On December 12, 2018, the Supreme Court Collegium comprising the then Chief Justice of India Ranjan Gogoi and Justices Madan B. Lokur, A.K. Sikri, S.A. Bobde and N.V. Ramana, had taken certain decisions, which included recommending the names of Justices Pradeep Nandrajog and Rajendra Menon for elevation to the Supreme Court. However, the collegium recommendation to this effect was never made public, and eventually, on January 10, 2019, the Collegium which was reconstituted with the retirement of Justice Lokur, recommended the names of the then Chief Justice of the Karnataka High Court Dinesh Maheshwari, and the Delhi High Court’s Justice Sanjiv Khanna.

The January 2019 resolution while referring to December 2018 meeting recorded, “The then Collegium on 12th December 2018 took certain decisions. However, the required consultation could not be undertaken and completed as the winter vacation of the Court intervened. By the time the Court re-opened, the composition of the Collegium underwent a change. After extensive deliberations on 5th / 6th January 2019, the newly constituted Collegium deemed it appropriate to have a fresh look at the matter and also to consider the proposals in the light of the additional material that became available“.

Dismissing the appeal of Bharadwaj, Justice Varma noted, “It becomes pertinent to observe that a “decision” taken by the collegium would necessarily have to be embodied in a “resolution” which is ultimately framed and signed by the Hon’ble members of that collective body. That resolution alone would represent the collective decision taken or the majoritarian view which prevailed and was adopted”. He added since the issues which arose for discussion remained unresolved or at least in an inchoate state, no formal resolution came to be drawn up.

Those very agenda items were again taken up for consideration on 10 January 2019. The resolution of the Collegium of 10 January 2019 specifically records that although certain decisions were taken, since consultation could not be completed and the winter vacation of the Court intervened, the agenda items of 12 December 2018 were again deliberated upon by the Collegium on 5/6 January 2019 when it was decided that it would be appropriate that the proposals be re-evaluated in light of the additional material that had become available“, the judge said.

He thus ruled that there was no ground to doubt the disclosure made that no resolution was drawn. “…It is manifest that, in the absence of any formal resolution coming to be adopted and signed by the Members of the Collegium on 12 December 2018, the respondents have rightly taken the position that there was absence of material that was liable to be disclosed”, the judge ruled.

The judge also rejected the submissions made by advocate Prashant Bhushan, for the petitioner, that newspapers had reported that certain decision were indeed taken on Decemeber 12, 2018. “The submissions addressed in the backdrop of certain newspaper reports are noticed only to be rejected since it is well settled that such reports are of no evidentiary value and Courts would be clearly transgressing their well-settled limitations if cognizance were to be taken of such unsubstantiated and unverified reports”, the bench said.

In January 2020, Justice Lokur, while speaking at an event organised by The Leaflet, had said that he was disappointed that the resolution passed on December 12 was not put in the public domain.

Recently, Justice Gogoi, in his autobiography, mentioned that though the Collegium had agreed on the name of Justices Nandrajog and Menon, their names had not been sent to the Union Law Minister as per procedure by him. He decided to keep the matter in abeyance. Eventually, what followed thereafter was the recommendation made by Collegium on January 10, 2019 recommending the names of Justices Maheswari and Khanna to the Supreme Court.

Speaking to The Leaflet, Bhardwaj said that transparency in the process of appointment of judges is key to ensure public trust in the institution of the judiciary, and the resistance to providing information about decisions taken by the collegium is extremely unfortunate. She added that the judiciary should lead from the front to ensure that peoples’ right to information is upheld.

“The order of the High Court is very disappointing and we will be challenging it”, Bharadwaj said.

Click here to read full judgment.