At the height of the dissatisfaction with Dipak Misra’s tenure, senior advocate and the de facto Bhishma Pitamah of the Indian legal world, Fali S Nariman, is reported to have said that any action against Misra was pointless.
Nariman also said that we would have to wait for Justice Ranjan Gogoi to take over, for any real changes in the system. Well, Nariman has been proved wrong. By Justice Ranjan Gogoi himself.
The initial hope that Gogoi would streamline the administration of the court, take the other judges along with him, and put in place systems to ensure transparency and accountability, is quickly fading.
More so in light of the controversy that has erupted over the collegium of judges’ nomination of Justice Dinesh Maheshwari and Justice Sanjiv Khanna, to the Supreme Court of India.
What the Controversy is Not About
To be quite clear, the real controversy is not over the qualifications or over the abilities of either Justice Maheshwari or Justice Khanna to be judges of the Supreme Court. That they are lower down on the seniority list is a red herring – there’s no vested right for the senior-most High Court judges to be made judges of the Supreme Court. This principle is clear from the “Third Judges case” where a Constitution Bench held:
“Where, therefore, there is outstanding merit the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all India seniority list or in his own High Court. All that then needs to be recorded when recommending him for appointment is that he has outstanding merit. When the contenders for appointment to the Supreme Court do not possess such outstanding merit but have, nevertheless, the required merit in more or less equal degree, there may be reason to recommend on among them because, for example, the particular region of the country in which his parent High Court is situated is not represented on the Supreme Court bench. All that then needs to be recorded when making the recommendation for appointment is this factor. The "strong cogent reasons" for appointing to the Supreme Court a particular High Court Judge, not for not appointing other High Court Judges senior to him.”
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What the Collegium Didn’t Put on Record
Given that seniority is neither necessary nor sufficient basis to appoint a High Court judge to the Supreme Court, it would be wrong to use the term “supersession” in this context. After all, the term is used largely in the context of the appointment of the Chief Justice of India where seniority is the sine qua non for appointing a Supreme Court judge to the post.
In the context of Justice Maheshwari, it has been pointed out that he has been passed over once by the collegium, and therefore he should not have been considered.
This point too is answered by the Third Judges case:
“It is not unusual that a Judge who has once been palled over for appointment to the Supreme Court Might still find favour on the occasion of another selection and there is no reason to blot his copybook by recording what might be construed to be an adverse comment about him. It is only when, for very strong reasons, a collegium finds that, whatever his seniority, some High Court Judge should never be appointed to the Supreme Court that it should so record. This would then be justified and would afford guidance on subsequent occasions of considering who to recommend.”
The specific context in which Justice Maheshwari was passed over was the controversy over the re-opening of an inquiry into allegations against a judge who had been recommended to the High Court by the collegium, which prompted a strong response from Justice J Chelameswar over interference by the political executive.
Was this indiscretion enough to state that Justice Maheshwari should never make it to the Supreme Court? Probably. Probably not. Did the collegium ever put this down on the record? It certainly did not.
The Real Source of the Controversy
Leaving aside the merits of the individual judges, what the present controversy has thrown up is the flaw at the heart of the collegium system of judicial appointments.
The initial recommendation on 12 December 2018, looking to elevate Justices Rajendra Menon and Pradeep Nandrajog was reconsidered, and the reasons offered in the resolution dated 10 January 2019 are most cryptic. The ostensible reasons given for reconsideration is that consultation with other judges had not been completed, and that “additional material” had become available.
As has been pointed out by Advocate Prashant Bhushan, the reasons offered don’t add up. Complicating the matter is the fact that the resolution indicating the decisions taken on 12 December was never uploaded on the Supreme Court website. What, therefore, changed in the one month between December 2018 and January 2019?
This leaves us to speculate: was it the change in the collegium where Justice Madan Lokur was replaced by Justice Arun Mishra which prompted this?
Was this the result of petulance on the part of the CJI over the leak of the collegium’s decision before the resolution was uploaded? Was this the result of some personal animosity?
Justice Gogoi Has Opened Up New Fissures Within Judiciary
The very fact that we are speculating instead of examining matters of public record on such an important matter tells us exactly what is so wrong with the collegium system of appointment.
There is simply too little transparency or accountability for the actions of the collegium of judges. No progress has been made by the Supreme Court in improving the Memorandum of Procedure for appointment of judges, or getting the Union Government to agree to follow it.
There is no disclosure of material or reasons which inform the appointment of judges. All of which, one hoped, Justice Gogoi would rectify once he took over as CJI.
That the controversy over the appointments of Maheshwari and Khanna has come almost exactly one year after the judges’ press conference which Justice Gogoi was also part of, seems like a cruel irony. The expectations were high from CJI Gogoi, but so far, they seem to have been belied.
Far from uniting the court and repairing the institution, he has managed to open up new fissures within the judiciary with this particular decision.
The storm of criticism that has met the decision-making process is entirely justified, and one hopes it will prompt Justice Gogoi to reflect.
(Alok Prasanna Kumar is an advocate based in Bengaluru and can be reached @alokpi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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