Supreme & infallible Collegium

The trinity of fairness, transparency and accountability form the bedrock of an effective and independent judicial system. Legal reasoning, justifiability and confirming to judicial ethics remain the hallmarks of judicial decisions, appointments as well as judicial behaviour. 

Constitutionally speaking, this hexagon of judicial character should remain entrenched in every decision concerning appointments of judges at all levels.

However, judicial appointments in India are full of contradictions and application of differential norms. 

The Supreme Court has arrogated the power of appointment of judges from the executive, which are robustly being practiced by the Supreme Court Collegium.        

The recommendations of Collegium (August 28, 2019 ) to elevate Chief Justices of Himachal Pradesh, Punjab & Haryana, Rajasthan and Kerala high courts, Justices V. Ramasubramanian, Krishna Murari, S. Ravindra Bhat and Hrishikesh Roy respectively, as apex court judges have once again proved that whether it is appointment of a Chief Justice of a high court or of judges to the Supreme Court, the selection is always made on subjective norms - the quality and worth on the bench, as well as seniority has little weight. 

The Collegium has never assigned any credible parameters for benchmarking why one judge is worthier than the other when superseding many of his senior brother and sister judges.      

There are many judges senior to the four mentioned above, both in terms of initial appointment as a judge of the high court and later as the Chief Justice of a high court. Justice Mrs V.K. Thahilramani (DoIA 26/06/2001), Chief Justice Madras High Court and Justice Pradeep Nandrajog (DoIA 20/12/2002), Chief Justice of Bombay High Court, are much senior on the all India seniority list as well as seniority list of Chief Justices of the high court. Chief Justice of Karnataka, Justice Abhay Shreeniwas Oka (DoIA 29/08/2003) is also senior on the all India list. 

Justice Dhirubhai N. Patel (DoIA 07/03/2004) is senior to Justice Bhat, Justice Ramasubramanian and Justice Hrishikesh Roy. Justice Ms Gita Mittal (DoIA 16/07/2004) was appointed high court judge on the same day as Justice Bhat. However, she has been senior to Justice Ramasubramanian and Justice Roy. There are many justices senior to Justice Ramasubramanian and Justice Roy, namely Justice Govind Mathur (02/09/2004), Justice Thottathil B.

Radhakrishanan (14/10/2004), Justice Ajay Kumar Mittal (DoIA 09/01/2004), Justice K.S. Jhaveri (DoIA 07/03/2004) and Justice Ameshwar Pratap Sahi (DoIA 24/09/2004) in the all India seniority list.  

While this in not to question the competence of four elevated judges, the fact that senior high court judges, Justices V.K. Thahilramani, Abhay Shreeniwas Oka, Gita Mittal, Pradeep Nandrajog and K. S. Jhaveri have been superseded minus any justification, is what has raised eyebrows. 

Supreme Court judge, Justice Sanjay Kishan Kaul, wrote to the Chief Justice of India, Ranjan Gogoi and expressed his concern when Justice Pradeep Nandrajog was initially superseded and a much junior judge was elevated to the Supreme Court. 

This was done by overruling the Collegium’s decision, when Justice Arun Mishra replaced Justice Madan Lokur and its composition was changed. The second judge elevated was also at the centre of controversy. 

Justice Chelameswar called for an enquiry, which he initiated on the basis of a government letter, against a judge recommended by the Supreme Court Collegium for elevation to the high court.     

Not to anyone’s surprise, the Collegium has once again modified its earlier recommendation to appoint Justice Akil Kureshi as the Chief Justice of Madhya Pradesh High Court and now recommended him as the Chief Justice of Tripura High Court. 

As usual, no reason was given for this abrupt modification and therefore decision prima facie appears to be defective. As no remedy lies against Collegium decision, the only option before Justice Kureshi is to resign.     

The SC Collegium made another arbitrary recommendation to transfer one of the most senior judges of the high court, Justice Tahilramani, who was appointed as the Chief Justice of the Madras High Court on August 8, 2018.

She was transferred to the Meghalaya High Court and the motive attributed to this transfer was Justice Tahilramani’s decision (May 2017) upholding the conviction and life imprisonment of 11 accused in Bilkis Bano gang-rape case, while setting aside the acquittal of seven persons, including policemen and doctors. 

A judge is appointed as Chief Justice initially in smaller high courts while senior-most judges are given bigger high courts considering their experience and ability to discharge varied administrative powers vested in Chief Justice of any high court. 

Therefore senior-most judges, particularly those appointed as Chief Justice at a bigger high court, are usually not transferred to such a small high court and are considered for elevation to the Supreme Court. 

This is a constitutional convention that has evolved over the years and has the same sanctity as the convention that the senior-most judge of the Supreme Court will be the Chief Justice of India.  

Justice Tahilramani made a representation against the Collegium’s decision, but perhaps could not realise that Collegium has emerged as the only institution in our constitutional framework, which cannot be questioned on any ground whatsoever. 

The only remedy against Collegium’s decision is to resign. Thus, Justice Tahilramani resigned and the President apparently had to accept her resignation.          

It is difficult to understand why same standards of judicial scrutiny, which the Supreme Court applies in case of all other arbitrary transfer and appointment processes, cannot be applied to the decisions of the Collegium? 

Why is an aggrieved or public spirited person not permitted to approach the court as done in the past, if Collegium takes erroneous factors into consideration or does not take relevant factors into consideration, as it was done earlier? If this opaque process of appointment and transfers continues, our high courts will turn out to be the subservient units of the apex court, which is against the spirit of the Constitution.

Author is a professor of law and Registrar (I/C), National Law University, Odisha