Attorney-general wants ‘sensitive information’ on HC judges on record

India's attorney-general R. Venkataramani informed a Supreme Court Bench headed by Chief Justice of India D.Y. Chandrachud on Friday, 13 September that he had received ‘sensitive information’ about some high court judges recommended by the collegium for appointment as chief justices. The AG offered to submit the information in a sealed cover to the court. Significantly, he also told the apex court that he intended to put the ‘sensitive information’ on record.

The Supreme Court, which has been hearing a PIL praying for the court to fix a timeline for the Union government to act on recommendations made by the collegium, is likely to hear the matter again on 30 September.

Two months ago, the collegium had recommended seven serving high court judges for elevation as chief justices of different high courts. Delhi HC acting chief justice Manmohan, who is due to retire in 2024, was recommended for confirmation as CJ in Delhi. The collegium also recommended justices N.M. Jamdar and K.R. Shriram of Bombay HC, justices Rajiv Shakdhar and S.K. Kaith of Delhi HC, justice G.S. Sandhwalia of Punjab and Haryana HC, and justice Tashi Rabstan of J&K and Ladakh HC for elevation as chief justices.

It was not clear whether the sensitive information was related to all the seven sitting judges, but the AG’s unusual submission in open court has cast an unnecessary cloud on all of them.

The PIL, pending for the past several years, argued that the apex court could not possibly keep ‘coaxing, cajoling, exhorting, pursuing, admonishing and cautioning’ the union government to act on recommendations made by the collegium for elevation, transfer and appointment of judges as chief justices.

In July, 2024 the Union ministry of law and justice had informed Parliament that as of 19 July 2024, as many as 357 posts of judges in high courts, amounting to 32 per cent of the sanctioned strength, were vacant. In December 2023, the vacancies were 29 per cent of sanctioned posts. Allahabad HC led the pack with 76 vacancies, the ministry informed.

The ministry had received 219 recommendations from the high court collegiums, Parliament was told, and 90 of them were forwarded to the Supreme Court collegium after scrutiny. The SC had advised on 82 recommendations. Three high courts, namely Delhi, Punjab & Haryana and Jharkhand, were without a full-time CJ, the ministry said.

While the Union government keeps delaying and dragging its feet over implementing the collegium’s unanimous resolutions, the AG's extraordinary plea to place on record sensitive material raises two immediate concerns.

While the law ministry, the home ministry and the Intelligence Bureau normally vet recommendations received from high court collegiums for elevation — and the government informs the Supreme Court collegium of its findings as a matter of routine — this is possibly the first time that the government wants to put out ‘sensitive information’ on record.

Why? If the information is sensitive enough to warrant them to be part of the record, why the secrecy of a sealed cover? The government in any case had the option of informally apprising the collegium of its findings, as it has been doing in other cases.

Reports in Live Law and Times of India do not clearly say that the sensitive information is related to one or more of the sitting judges recommended for appointment as CJs. However, if this is so, it would mean that the information relates to the period after their elevation as HC judges. What's more, it is also not clear if the government has reservations against all or some of the recommendations made. If the reservations are against one or two of the judges, why hold up others?

Unfortunately, the AG’s submission appears to have muddied the waters rather than clear the air.