SC rules that a recommendation of its collegium cannot be reconsidered by an HC Chief Justice acting alone

Why has the Supreme Court ruled that a high court chief justice can reconsider a recommendation of the Supreme Court Collegium only in consultation with the two senior-most high court judges?

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THE Supreme Court ruled on Friday that a chief justice of a high court cannot reconsider a recommendation of the Supreme Court's Collegium on their own. This can only be done collectively by the high court collegium, which includes the two senior-most high court judges.

A Bench comprising Justice Hrishikesh Roy and Prashant Kumar Mishra was ruling on a petition filed by two seniormost district and sessions judges of Himachal Pradesh questioning the decision of the high court collegium to recommend the names of junior judges for elevation while ignoring the decision of the Supreme Court Collegium to reconsider the name of the duo.

Petitioners Arvind Malhotra and Chirag Bhanu Singh were recommended by the high court collegium on December 6, 2022, for elevation as judges of the Himachal Pradesh High Court.

At that time, Justice Amjad A. Sayed was heading the Himachal Pradesh High Court Collegium by virtue of being the Chief Justice.

This resolution is not in the public domain. The recommendation was made to the Supreme Court Collegium which, on July 12, 2023, decided to defer the consideration of those names.

On January 4, 2024, the Supreme Court Collegium headed by the Chief Justice of India (CJI) Dr D.Y. Chandrachud remitted the names for reconsideration to the Chief Justice of the Himachal Pradesh High Court.

Interestingly, even this resolution is not available in the public domain. The resolution was, however, shown to the Bench and the counsel appearing for the parties.

Thereafter, on January 16, 2024, the Union minister of law and justice wrote a letter to the Chief Justice of the Himachal Pradesh High Court, requesting him to make fresh recommendations for the two officers against the available service quota vacancies in the Himachal Pradesh High Court.

This time, the high court collegium headed by Chief Justice Mamidanna Satya Ratna Sri Ramachandra Rao decided to recommend two other judicial officers for their elevation as judges of the high court.

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On March 6, 2024, the Chief Justice of the High Court individually addressed a letter to the Supreme Court Collegium on the suitability of the petitioners. What the letter of the Chief Justice of the high court contains is not in the public domain.

The petitioners approached the Supreme Court by filing a petition under Article 32 of the Constitution, aggrieved by a recommendation made by the high court to appoint two other judicial officers as judges without first considering their names.

The argument was that if the latter recommended persons were considered for appointment ahead of the two petitioners, it would amount to ignoring their seniority and long-standing unblemished service.

Opening of the sealed cover for the judges and lawyers only

The Supreme Court called for a report from the registrar-general of the high court. The report, not in the public domain but referred to by the Bench, reflected that the resolution of the Supreme Court Collegium passed on January 4, 2024 was never received by the Chief Justice of the Himachal Pradesh High Court.

It was further stated that the Chief Justice of the high court had written to the Chief Justice of India on December 11, 2023, seeking guidance on whether the collegium of the Supreme Court needed further inputs about the suitability of the two officers for elevation as high court judges.

On March 6, 2024, the Chief Justice of the high court individually addressed a letter to the Supreme Court Collegium on the suitability of the petitioners which is not in the public domain.

This was projected to be in full compliance with the resolution dated January 4, 2024 of the Supreme Court Collegium. The report also noted that a representation was made by one of the petitioners to the Chief Justice of India against non-consideration for elevation. This letter, it was alleged, is contemptuous. Even this letter is not in the public domain.

Arguments by petitioners

Senior advocate Arvind Data, for the petitioners, submitted that the issue of elevation has to be collectively considered by the high court collegium and not by the Chief Justice acting alone.

He also submitted that the petitioners have had a blemish-free record and all their annual confidential reports have either been 'outstanding' or 'excellent'.

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It was then submitted that as the two senior-most judges, they have a constitutional right for reconsideration of their names. On the maintainability of the petition, it was submitted that the petition was limited to 'lack of effective consultation' and hence was maintainable.

In support, Datar cited the decision of the Supreme Court in Mahesh Chandra Gupta versus Union of India where it was held that the issues of 'eligibility' and 'effective consultation' would be within the realm of judicial review.

Judicial review is restricted to 'eligibility' and not 'suitability' or 'content of consultation'.

High court defended its decision

Senior advocate Dr S. Muralidhar, for the high court, questioned the maintainability of the petition. He argued that the petition seeking reconsideration of their name in effect is a review of the 'suitability' of the candidates.

As regards the Chief Justice of the high court individually taking a decision and addressing the letter to the Chief Justice of India, Dr Muralidhar argued that the resolution of the Supreme Court Collegium dated January 4, 2024, did not specify that the reconsideration of the petitioners' names was to be in consultation with the other members of the high court collegium.

Arguments against maintainability overruled

The Bench rejected the argument of Dr Muralidhar against the maintainability of the petition. The Bench referred to a decision of a nine-judge Bench in the Supreme Court Advocates-on-Record Association versus Union of India, also known as the Second Judges case, wherein it was held that except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision making.

The Bench also referred to the Third Judges case, wherein it was again held that the absence of consultation amongst the members of the collegium would be within the limited purview of judicial review.

The Bench also referred to a decision of the Supreme Court in the Mahesh Chandra Sharma case in which the court distinguished between 'eligibility' and 'suitability' and noted that Article 217(1) of the Constitution of India pertains to the 'suitability' of an individual, whereas Article 217(2) concerns the 'eligibility' of a person to become a judge.

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"While 'eligibility' is an objective criterion, 'suitability' is a subjective one. The Bench further observed that decisions regarding who should be elevated, which primarily involve considerations of 'suitability', are not subject to judicial review," the decision in Mahesh Chandra Sharma had ruled.

On the facts, the Bench noted that it had requisitioned the resolution on re-consideration to factually determine as to whether 'effective consultation' was made in terms of the resolution of the Supreme Court Collegium.

"This scrutiny has nothing to do with the 'merits' or the 'suitability' of the officers in question but to verify whether 'effective consultation' was made. Such scrutiny is permissible within the limited scope of judicial review as discussed before. Therefore, the present writ petition for this limited scrutiny is found to be maintainable," the Bench ruled.

Elevation for judgeship in the high court has to be considered collectively by the collegium of the high court

The Bench observed that the process of judicial appointments to a superior court is not the prerogative of a single individual. Instead, it is a collaborative and participatory process involving all collegium members.

"The underlying principle is that the process of appointment of judges must reflect the collective wisdom that draws from diverse perspectives. Such a process ensures that principles of transparency and accountability are maintained," the Bench said.

The Bench heavily relied upon the decisions in the Second and Third Judges cases wherein it was observed that "the element of the plurality of judges in the formation of the opinion of the Chief Justice of India, effective consultation in writing and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness."

On this basis, the Bench observed that collaborative deliberations bring transparency in the process, as decisions are deliberated, debated and recorded. This contributes, the Bench added, to public trust in the judiciary, as it demonstrates that appointments are being made based on thorough consideration.

The Bench rejected the argument of Dr Muralidhar that the Chief Justice of the high court can individually reconsider a candidate based on how resolutions are worded.

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Dr Muralidhar relied upon the wording of the resolution. He contended that it was specifically addressed to the Chief Justice of the high court. The Bench, however, did not find merit in the submission and observed such communications are naturally addressed to the Chief Justice of the concerned high court but the letter addressed to the Chief Justice will not enable him to act without participation by the other two collegium members.

On the facts, the Bench observed that no collective consultation amongst the three constitutional functionaries of the high court, i.e., the Chief Justice and the two senior-most companion judges, had taken place.

The Bench declared that the letter of the Chief Justice of the Himachal Pradesh High Court dated March 6, 2024 on the suitability of the petitioners was an individual decision and thus vitiated both procedurally and substantially.

The Bench has now directed the high court collegium to reconsider the name of petitioners for elevation as judges of the high court.

In its Order, the Bench also made certain observations regarding the disclosure of 'sensitive' information. It said there is a need to protect certain sensitive information in matters involving the appointment of judges.

"While transparency is necessary to ensure fairness and accountability, it must be carefully balanced with the need to maintain confidentiality. Disclosing sensitive information would compromise not only the privacy of the individual but also the integrity of the process," the Bench said.

The reason for this observation is not clear since the judgment does not contain a mention of whether arguments on the disclosure of the 'sensitive' information were even made in the case.