Lawyers express reservations about decision to place reason for rejecting names in public
To ensure that judges would be insulated from political influence, the assembly agreed on a consultative process of appointing judges, a “middle course,” as B.R. Ambedkar described it. The Constitution avoided the cumbersome process of legislative interference and the undemocratic provision of a veto to the Chief Justice, and vested in the President the power to both make appointments and transfer judges between high courts. The President, who would act on the advice of the council of ministers, was, however, required to compulsorily consult certain authorities, including the Chief Justice of India (CJI), and, when making appointments to a high court, the chief justice of that court.
Two months after the Supreme Court decided to make decisions regarding appointment of judges to the superior courts public in a nod to concerns over lack of transparency, an analysis reveals an apparent arbitrariness in the process. The move has also resulted in resentment among lawyers and potential candidates who fear loss of face in case of rejection.
In some cases, candidates have been rejected for crossing the age limit of 55 years while in one case the condition of minimum age of 45 years was waived.
In a few cases, the high court collegium, comprising Chief Justice Dipak Misra and the two senior-most SC judges, Jasti Chelameswar and Ranjan Gogoi, sent “adverse”, “unconfirmed” reports back to the state high court for reconsideration.
In one case, from the Calcutta HC, the collegium waived its own executive instructions requiring relatives of those being considered for appointment as judges to give undertakings that they would not practice in the same court to eliminate conflict of interest issues which may crop up later. This was a mere administrative instruction and not mandatory, the collegium noted.
In one instance from Kolkata, the collegium chose to ignore the fact that the judge did not seem to have enough judgements under his belt to make the cut, but in another it rejected a candidate who did not fulfil the minimum income cut-off, a condition that could go against lawyers who do pro bono work.
According to several lawyers, many of whom spoke to ET on condition of anonymity, this shows the whimsical nature of the decision-making process of appointing superior court judges. In a glaring instance, they said, the SC brushed aside the Karnataka chief minister’s views that the candidates did not reflect all sections of society (a euphemism for backwards) and the governor’s views that the candidates did not show the efficiency required for these posts.
What has caused maximum heartburn, however, is the decision to place in public domain the reason for rejecting names of candidates for these constitutional posts. Both lawyers and potential candidates expressed serious reservations on this count. “No good candidate will apply for fear of losing face should his name be rejected,” said a lawyer.
Others said it destroys the person’s reputation. “If a person is already an additional judge, it casts doubts over all his judgements,” said another lawyer.
Resentment is building up against the collegiums, according to lawyers, some of whom said they were planning to send representations to the Chief Justice of India urging him not to place the reasons for rejecting names in public domain.
Senior advocate Rana Mukerjee said it is “demeaning” to place names and reasons for rejecting a name in public. “Collegium can have a thousand reasons to reject…. Reasons for it should be communicated privately to the candidate,” he said.
Senior advocate Arvind P Datar raised twin objections to this – one of natural justice and another of informational privacy. “We talk of natural justice. IB (intelligence bureau) reports are collected behind the candidate’s back and have been found to be incorrect earlier. If it’s made public billions come to know of it. But the judge has no way of refuting it,” he said.
Consider some of the reasons professed thus far. In the cases of A. Zakir Hussain and Dr. K. Arul, candidates nominated for elevation to the Madras High Court, the collegium has verbatim published the following statement of rejection: “keeping in view the material on record, including the report of Intelligence Bureau [IB] he is not found suitable for elevation to the High Court Bench.” The details of what the IB’s reports might contain and the apparent materials on record remain concealed. Yet, threadbare as these reasons might sound, those offered for rebuffing the nomination of Vasudevan V.N., a judicial member of the Income Tax Appellate Tribunal, are particularly perplexing.
“While one of the two consultee-colleagues has offered no views about his suitability, the other colleague has not found him suitable for elevation,” the report reads. “As per record, his name was also recommended by the Collegium of the Calcutta High Court on 28.11.2016 and the Government of West Bengal has expressed its disagreement. Record placed before us also shows that the proposal for his elevation initiated on a previous occasion by the Collegium of the Bombay High Court was rejected by the Supreme Court Collegium on 1st August 2013. A complaint pointing out this fact has also been received in the office of the Chief Justice of India. Keeping in view the views of the consultee judges and the material on record the Collegium is of the considered opinion that Shri Vasudevan V. Nadathur is not suitable for elevation to the High Court Bench.”