The Embattled Supreme Court Collegium

Even as the Supreme Court and the Union government lock horns over appointment of judges to the higher judiciary, there is unsettling news that at least on two occasions, and possibly many more, the collegium gave in to the government after reiterating its recommendations.

The settled convention is that the collegium recommends the names for elevation as judges to the high courts and the Supreme Court. The government may return all or some of the names, citing its reservations. But if the collegium reiterates the same names, the government has no option but to accede to it and notify those recommended as judges.

A bench headed by Justice Sanjay Kishan Kaul has also been making the same point telling the government that once a name is reiterated, the appointment has to be made. The bench, comprising Justice Kaul and Justices Abhay S. Oka and Vikram Nath, pleaded both surprise and ignorance when apprised by the Attorney General that the collegium itself had withdrawn two of the names it had recommended and reiterated.

In an order passed on December 8, the bench headed by Justice Kaul noted, “We are not aware in what special circumstances were these names sent back a second time and dropped but we are sure the collegium will keep this thought process in mind while now dealing with the second time reiterated names.”

The bench said that sending back the reiterated names for the second time would be in breach of the decision of the Constitution Bench in the Second Judges case in 1993. The judgment had asserted that if the recommendation is unanimously reiterated (by the collegium), with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made.

Justice Kaul, who is now a member of the collegium would not be aware of the circumstances and reasons behind decisions of the collegium taken in 2019 and 2021 when he was not a member of the panel; that is because correspondence between the government and the CJI, and the record of the consultation process, are some of the best guarded secrets of this country, as pointed out by Justice J. Chelameswar in his dissent in the National Judicial Appointment Commission (NJAC) case

This month the Attorney General sought to justify return of the reiterated names by the government by citing instances when the collegium had accepted the government’s objections to the reiterated names. The collegium headed by the then CJI Ranjan Gogoi and N.V. Ramana in 2019 and 2021 respectively, the AG informed the bench, had decided to recall the reiterated names of advocate Amit Negi (for elevation as a judge at the Allahabad High Court) and advocate K.K. Paul (for elevation as a judge at the Kerala High Court).

This was startling because while on the judicial side, the Supreme Court maintains that once names are reiterated, the government has to notify the appointment of judges, on the administrative side, the court accepted the government’s objections and withdrew recommendations.

The pattern is becoming disturbingly familiar. First the government is keeping the file with recommendations to itself for an indefinite period without spelling out its reservations on the name(s) sent by the collegium. This has the effect of derailing the seniority of the appointees, a factor taken into consideration by the collegium while making the recommendation.

The delay also raises unwarranted doubts and is humiliating to the persons concerned. The uncertainty and the cloud of insinuations have occasionally prompted individuals to withdraw their consent to the appointment.

As and when the government does send back the file with its reservations, and the collegium after considering the objections still decides to reiterate the names, the government must notify them. This is what the Second and Third judges cases as well as the NJAC judgment laid down.

Information available with this author is that the names returned to the collegium for the second time despite the collegium’s reiteration, pertain to the high courts of Allahabad (five names), Calcutta (two names), Karnataka (one name) and the High Court of Kerala (two names).

On 30 August 2016, the collegium cleared the name of Amit Negi for elevation to the Allahabad High Court. It was reiterated on 15 November 2016. But in June 2017, the collegium dropped his name ostensibly because an FIR had been filed against Negi. Subsequently, it was learnt, the high court had quashed the FIR and no appeal was preferred by the Uttar Pradesh government which appeared to have accepted the decision.

Accordingly, the collegium on 1 August 1 2018 passed a resolution to process his appointment most expeditiously. Curiously, for reasons not yet available in the public domain, the collegium then headed by CJI Ranjan Gogoi decided to recall its recommendation on 16 January 2019. The Collegium recommended the name of K.K. Paul for elevation to the Kerala high court on 25 March 2019.

Two years later on 2 March 2021, the collegium reiterated his name. The government, however, sent it back to the collegium for reconsideration. Eventually his name was withdrawn by the collegium headed by the then CJI Ramana on 12 August 2021. The reasons remain unknown.

As many as 10 recommendations for different high courts reiterated by the collegium are learnt to have been sent back by the government, ironically the day before the Supreme Court was to hear the judicial appointments case on Nov. 28.

Some of the names reiterated by the collegium but ignored by the government are those of advocate Sanjeetha Kallor Arakkal (recommended on 1 Sept 2021, reiterated on 11 Nov. 2021), advocate Aravinda Kr. Babu Thavarakkattil (recommended on 1 Sept 2021, reiterated on 11 Nov 2021), advocate Nagendra Ramachandra Naik (reiterated by the collegium twice on 2 March and 1 Sept 2021).

The names of two senior advocates—Amitesh Banerjee and Sakya Sen—were also reiterated twice. The first recommendation for their elevation to the Calcutta High Court was made on 24 Sept 2019, and reiterated on 1 Sept 2021 and 8 October 2021, respectively.

Banerjee is the son of former Supreme Court judge, U.C. Banerjee, who headed a commission to inquire the 2002 fire in Sabarmati Express at Godhra that led to 59 deaths. He concluded that the fire was accidental and not started by the Muslim mob.

Four advocates, namely Shishir Jain, Rishad Murtaza, Dhruv Mathur and Vimledu Tripathi were recommended for elevation to the Allahabad high court on 24 August 2021. On 6 October 2021 the collegium also recommended the name of advocate Manu Khare. All five names were reiterated on 14 July 2022.

Khare is the son of former CJI V.N. Khare, who was very critical of the Gujarat government following the 2002 riots. Murtaza had been government counsel during the Akhilesh Yadav government in UP. Tripathi was removed as government counsel by the BJP after Allahabad HC charged him of misleading the court for not letting the court know on May 4 that UP’s principal secretary (home) had on May 3 refused sanction of prosecution against chief minister Adityanath, the main accused in a case related to hate speech.

Whether the government is cherry picking the names, influencing the seniority list and holding the collegium to ransom is open to question. Primacy and independence of the judiciary is at the heart of the matter and the sooner the question is settled, better it is for all.