The collegium system isn’t foolproof

Source: The Hindustan Times dated 16.01.2019

Article by Rajiv Nair (Rajiv Nayar is a senior advocate. The views expressed are personal.)

The supersession of three senior Delhi HC judges exposes a chink in the process of appointment of judges.

The recent decision of the Collegium of the Supreme Court on January 10, 2019, in recommending the names of Justices Dinesh Maheshwari and Sanjiv Khanna to the Court has evoked strong reaction inasmuch as Justice Khanna’s appointment will entail the supersession of Justices Pradeep Nandrajog, Gita Mittal and S Ravindra Bhat of the Delhi High Court. Suppose, for example, we were in the pre-collegium regime, such a decision would have been described as being arbitrary and whimsical because all of the three proposed to be superseded are fine judges and are neither lacking integrity nor judicial competence.

This decision once again exposes a chink in the process of appointment of judges, a process arrogated to itself by the Supreme Court (in the Supreme Court of Advocates on Record case, 1993), where it was laid down that with regard to the appointment of judges, the opinion of the Chief Justice of India (CJI) would not only have primacy but would be determinative in the matter.

The 1993 and 1998 verdicts also gave birth to the collegium system, which comprised of the Chief Justice of India and the senior most four judges of the Court after the CJI.

This is not the first time that the collegium system has inflicted injustice. Justice AP Shah was kept out of the Supreme Court because Justice SH Kapadia was averse to him. Take a more recent example. One of our finest judges, Justice Sanjay Kishan Kaul, suffered the ignominy of not making it to the Supreme Court in time, because he had happened to incur the wrath of Justice TS Thakur, while he was in the Delhi High Court. Several years later, Justice Thakur refused to recommend his name. He made it to the Supreme Court eventually but lost out in being made a Chief Justice of India.

The subjectivity and the inconsistency of the collegium system makes one wonder whether there should be a relook at the process of appointment of judges and the National Judicial Accountability Commission should be re-introduced in some form or the other. Although the NJAC Act, 2014, meant to replace the collegium system of judges, was struck down on October 16, 2015, by a majority of 4 - 1, it may be opportune that the reconstituted Parliament after the upcoming Lok Sabha elections, should bring a legislation so as to bring about a greater transparency and objectivity in the process of appointment of judges. Now take the case in hand. The collegium on December 12, 2018, had apparently recommended the names of Justices Menon and Pradeep Nandrajog to the Supreme Court. The fact that the recommendations were not sent cannot detract from the fact that the proposal to appoint these judges to the Supreme Court had been effectuated. On January 10, 2019, with the departure of Justice Madan B Lokur, (who would have never countenanced any supersession), Justice R Menon, one of the finest chief justices the Delhi High Court has known for a long time, and Justice Nandrajog’s names were recalled by the newly constituted collegium, deeming it appropriate to have a fresh look at the matter allegedly in the light of the additional material that had become available.

What was the additional material that had become available to the collegium justifying the non-appointment of these two judges to the Supreme Court, recommending the appointment of Justice Maheshwari when on October 30, 2018, the collegium itself had overlooked his name? In the past, and certainly under the pre-collegium system, appointments in derogation of the seniority principle would have evoked strong reactions. There were aberrations by the executive but such instances were rare and insignificant. The proposed recommendations are inconsistent with the judicial view of the Supreme Court in the Second Judge’s case, 1993, wherein it had been laid down that:

“Inter-se seniority amongst Judges in their High Court and their combined seniority on all India basis is of admitted significance in the matter of future prospects … It is, therefore, reasonable that this aspect is kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court … this would also lend greater credence to the process of appointment and would avoid any distortion in the seniority between the appointees drawn even from the same High Court.”

Supersession, as a rule, must never be encouraged unless there are grave and compelling circumstances. In the present case, none appear to be so. The government itself had delayed the appointment of justice KM Joseph to the Supreme Court on the ground that there were other judges more senior to him. Justice Maheshwari is ranked 21st and justice Khanna 33rd in the All India Seniority List. It is not as if there is anything against these two judges but why should they not await their turn? Let us see what “sixer” (to borrow the expression of the law minister) the government hits.