Explained| Why is Supreme Court collegium in the line of fire?

Source: PTI

The Supreme Court collegium's decision of revoking the promotion of two High Court judges to the apex court has generated disquiet amongst the legal fraternity.

The collegium on January 10 announced the elevation of Justice Dinesh Maheshwari, Chief Justice of Karnataka High Court, and Justice Sanjeev Khanna, a judge of Karnataka High Court.

This decision was in contention with the December 12 decision of the collegium, which had recommended that Justice Pradeep Nandrajog, Chief Justice of Rajasthan High Court, and Justice Rajendra Menon, Chief Justice of Delhi High Court be elevated to the apex court.

Let’s delve into the matter and take a look at what is causing the upheaval among the judges of the country’s top court.

The collegium system, which is responsible for the appointment of judges to the Supreme Court, revoked its December 12 decision of promoting Justice Nandrajog and Justice Menon, and recommended the names of Justice Maheshwari and Justice Khanna in its January 10 decision.

What might have caused the collegium to reverse its decision?

The collegium consists of four senior-most judges and is led by the Chief Justice of India (CJI). On December 10, the collegium, comprised Justices Madan B Lokur, AK Sikri, SA Bobde, NV Ramana and was led by CJI Ranjan Gogoi. This collegium unanimously recommended the names of Justice Nandrajog and Justice Menon.

However, CJI Gogoi was unhappy when he found out that the names have been leaked to the media before they could be sent to the President. Hence, he sought the reconsideration of choices at the next meeting of the collegium, which was scheduled to be held on January 5 and 6.

Meanwhile, Justice Lokur had retired and had been replaced by Justice Arun Mishra in the collegium.

On January 5, when the newly constituted collegium met, a judgment of the Delhi High Court headed by Justice Nandrajog was brought to the panel's notice. In the judgment, titled 'F Hoffmann-La Roche Ltd vs Cipla Ltd', 35 paragraphs were lifted verbatim from a 2013 article, The Times of India has reported.

Even though Justice Nandrajog had admitted to the mistake, saying those paragraphs were incorporated by a law clerk, and had expunged those paragraphs from the order after apologising to the authors, the fact seems to have weighed on the minds of the collegium members, leading them to reverse their earlier decision.

Why has the move sparked rumblings among the judges?

The abrupt decision to reverse the earlier promotion of judges has caused anguish among the judicial fraternity.

A Times of India report has quoted sources telling the paper that a Supreme Court judge Justice Sanjay Kaul has written to the collegium expressing its disappointment over the sidelining of Justice Nandrajog. In his letter, he is known to have said that Nandrajog is the senior-most judge in the zone of consideration and passing him over would send a wrong signal.

In addition, former Delhi High Court judge Kailash Gambhir has written a letter to President Ram Nath Kovind appealing to him that "credibility and independence of the judiciary be preserved and let another historical blunder be not committed".

"This is appalling and outrageous that such an earth-shattering decision has been taken to supersede as many as 32 judges which include many Chief Justices, casting aspersions on their intellect, merit and integrity," Gambhir wrote in his letter.

Retired judge of Delhi High Court Justice Kailash Gambhir has written to President Ram Nath Kovind, objecting to the decision of collegium which recommended elevation of Justice Sanjiv Khanna and Justice Dinesh Maheshwari to the Supreme Court pic.twitter.com/zblIFuy2rZ

— ANI (@ANI) January 16, 2019

Former CJI RM Lodha has reiterated this sentiment in a recent interview to news agency ANI, saying that he was surprised to know that a junior judge was recommended for elevation superseding senior judges.

He told ANI, “What I always feel is that the Collegium should act in a transparent manner, and reasons must be forthcoming why the decision was an upturn. There must be transparency.”

“The question is after Justice Nandrajog, there are two more judges, Justice Gita Mittal, the Chief Justice of Jammu and Kashmir High Court and Justice S Ravinder Bhatt. The Karnataka High Court Judge, who is from Rajasthan, was superseded six weeks ago, was not found to be, as per reports, deserving for being elevated to the Supreme Court,” Lodha added.

What is the Supreme Court’s response?

The Supreme Court has put up the following on their website:

“The then Collegium on 12th December, 2018 took certain decisions. However, the required consultation could not be undertaken and completed as the winter vacation of the Court intervened. By the time the Court re-opened, the composition of the Collegium underwent a change. After extensive deliberations on 5th / 6th January, 2019, the newly constituted Collegium deemed it appropriate to have a fresh look at the matter and also to consider the proposals in the light of the additional material that became available.”

What is the collegium system of appointment of judges?

The collegium system was commissioned by two judgments of the Supreme Court in the 1990s. It has no mention in the original Constitution of India or its successive amendments.

Under the system, two chief justices of high courts and two senior judges of the Supreme Court, led by the CJI form a panel which recommends suitable candidates. The shortlisted candidates undergo scrutiny the collegium before being appointed as judges to the apex court.

Is the collegium's recommendation final and binding?

The collegium sends its final recommendation to the President of India for approval. The President can either accept it or reject it. In the case it is rejected, the recommendation comes back to the collegium. If the collegium reiterates its recommendation to the President, then he/she is bound by that recommendation.