As SC Collegium modifies two HC chief justice recommendations, questions of transparency return

The process of judicial appointment has been non-transparent in India. Is the latest rejig in the Supreme Court recommendations another chapter in this long saga of secrecy?

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TWO months after it recommended the appointment of chief justices to seven high courts, the Supreme Court Collegium has now modified three recommendations for reasons that cannot be discerned from the resolution passed by the collegium.

Incidentally, the collegium decided to modify its recommendations days after the Attorney General for India R. Venkataramani told the Supreme Court that he wanted to share certain 'sensitive information' regarding some of the recent collegium recommendations pending with the Union government.

Musical chairs

In a meeting held on September 17, the collegium, which comprises Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justice Sanjiv Khanna and Justice B.R. Gavai, recommended the appointment of the senior-most judge of the High Court of Punjab and Haryana, Justice G.S. Sandhawalia, as Chief Justice of the Himachal Pradesh High Court.

On July 11, the collegium had recommended the appointment of Justice Sandhawalia as Chief Justice of the Madhya Pradesh High Court, which is relatively a bigger high court than the Himachal Pradesh High Court.

Now, the collegium has recommended that Justice Suresh Kait from the Delhi High Court be appointed as Chief Justice of the Madhya Pradesh High Court. Earlier, the collegium had recommended him for appointment as Chief Justice of the Jammu and Kashmir, and Ladakh High Court.

The collegium has also modified its recommendation about the appointment of Justice Tashi Rabstan, a judge at the High Court of Jammu and Kashmir, and Ladakh.

On July 11, the collegium had recommended his appointment as Chief Justice of the Meghalaya High Court. Now, the collegium has recommended that he be made the permanent Chief Justice of the High Court of Jammu and Kashmir, and Ladakh High Court, which is his parent high court.

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The collegium notes that as per the Memorandum of Procedure (MoP) (a document between the collegium and the executive indicating the process of appointments and transfer), Justice Rabstan can be appointed as Chief Justice at his parent high court because he has less than one year to retire.

Justice Rabstan is slated to retire on April 9, 2025, which means that when the collegium had recommended him for elevation to the Meghalaya High Court on July 11 this year, he already fulfilled the less-than-one-year criterion.

So it is not clear from the collegium's decision taken on September 17 as to what prompted it to recommend Justice Rabstan's continuation at the Jammu and Kashmir, and Ladakh High Court. It is also not clear why they have cited the less-than-one-year criterion now when they did not cite it earlier.

The collegium has chosen a new face as its recommendation for appointment as Chief Justice of the Meghalaya High Court. It has recommended Justice Indra Prasanna Mukerji, who is currently the senior-most judge at the Calcutta High Court, for the post of Chief Justice of Meghalaya High Court.

The recommendation to appoint Justice Sandhawalia at the Himachal Pradesh High Court will be given effect only after the appointment of Justice Rajiv Shakdher as Chief Justice of the high court.

Justice Shakdher is slated to retire on October 18 this year. The government's inaction over the recommendation of the collegium has reduced his tenure as chief justice.

The collegium has also maintained its recommendation to transfer Chief Justice of the Himachal Pradesh High Court, M.S. Ramachandra Rao as Chief Justice of the Jharkhand High Court.

In addition, it has also maintained its recommendations to appoint Justice Manmohan as Chief Justice of the Delhi High Court. Justice Manmohan has been functioning as acting Chief Justice there.

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The collegium has also maintained its earlier recommendations to appoint two Bombay High Court judges, Justice Nitin Madhukar Jamdar and Justice K.R. Shriram, as chief justices of the Kerala and Madras high courts respectively.

Not a new phenomenon

This is not the first time that the collegium has decided to modify its recommendations after the government did not approve them.

On December 13, 2022, the collegium had made the recommendation to the Union government to appoint Kerala High Court's Justice K. Vinod Chandran as Chief Justice of the Gauhati High Court.

However, the government did not act upon the recommendation. Later, the collegium modified its recommendation. This time, it said Justice Chandran be appointed as Chief Justice of the Patna High Court, and this recommendation was approved by the Union government.

A similar pattern can be seen in the collegium recommendations regarding Bombay High Court judge Justice Dhiraj Singh Thakur. The collegium had recommended him for appointment as Chief Justice of the Manipur High Court. The government never approved the recommendation.

The collegium finally withdrew its recommendation and issued a new recommendation for his appointment as Chief Justice of the Andhra Pradesh High Court, and this recommendation was approved by the Union government.

On April 20, 2023 the collegium felt compelled to recall its six-month-old recommendation to the Union government to appoint Orissa High Court Chief Justice Dr S. Muralidhar as Chief Justice of the Madras High Court, conceding to the government's refusal to give effect to the recommendation.

Lack of transparency

The September 17 decision of the collegium is another chapter in the long debate in India about the lack of transparency in judicial appointments and transfers.

Also read: As the SC, Centre play ping-pong over MoP, it is time for the Collegium to step up

Critics have long bemoaned that the recommendation of appointment, elevation and transfer of judges, the acceptance of such appointments, and the MoP are all shrouded in a kind of secrecy that does not behove a democracy.

Now and then, the collegium or the government makes feeble efforts to make the process more transparent, but such attempts are too few and far between.

The most recent of these attempts played out more than a year ago. It started when the then Union law minister Kiren Rijiju informed the Parliament on December 22, 2022 that the Union government has been receiving representations from diverse sources on lack of transparency, objectivity and social diversity in the collegium system of appointment of judges to constitutional courts.

In January 2023, the collegium made an unprecedented move to publicly disclose the objections of the Union government to its recommendations for elevation to judgeship of various high courts. The move was hailed by transparency activists and legal scholars as a breath of fresh air.

The disclosure revealed that many of the objections were political and ad hominem in nature. For example, two of the objections against senior advocate Saurabh Kiral, recommended for elevation as a judge of the Delhi High Court, were that he was openly gay and was in a relationship with a foreign national.

Similarly, one of the objections against advocate R. John Sathyan, recommended for judgeship of the Madras High Court, was that he had shared social media posts that were critical of Prime Minister Narendra Modi.

On January 24, 2023, the Union law minister criticised the move towards transparency and stated, "Putting secret inputs of Research and Analysis Wing (R&AW) and Intelligence Bureau (IB) in public is a matter of serious concern."

He added that the concerned officer, who is working for the nation in disguise or in a secretive manner, will think twice if they know their report is going to be in the public domain and that doing so will have implications.

Later, on March 17, 2024, Rijiju claimed that it was not a practice of the Union government to seek Research and Analysis Wing (R&AW) reports on proposals for the appointment of judges at high courts and the Supreme Court, except under extraordinary circumstances, involving issues related to national security.