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Synopsis

The Supreme Court has on September 6, 2024, held that the chief justice of a high court cannot individually reconsider a recommendation for the elevation of a judge, as this can only be done collectively by the high court collegium.

A bench of Justices Hrishikesh Roy and Prashant Kumar Mishra directed the Himachal Pradesh High Court's Collegium to reconsider the names of Chirag Bhanu Singh and Arvind Malhotra for elevation as judges of the high court in terms of the apex court collegium's decision of January 4, 2024, and the Law Minister's letter on January 16, 2024.

The court observed, "It appears to be a case where there was no collective consultation amongst the three Constitutional functionaries of the High Court i.e. the Chief Justice and the two senior-most companion judges, the Chief Justice alone considered the matter".

It held that the decision communicated by the chief justice of the high court was "vitiated both procedurally and substantially".

"The process of judicial appointments to a superior court is not the prerogative of a single individual. Instead, it is a collaborative and participatory process involving all Collegium members. The underlying principle is that the process of appointment of judges must reflect the collective wisdom that draws from diverse perspectives. Such a process ensures that principles of transparency and accountability are maintained," the bench said.

The court examined the issue of whether elevation for the judgeship in the high court has to be considered collectively by the collegium of the high court or whether the chief justice acting individually can reconsider the same. 

The bench agreed with the contention that collaborative deliberations bring transparency in the process, as decisions are deliberated, debated, and recorded, which contributes to public trust in the judiciary, as it demonstrates that appointments are being made based on thorough consideration. 

"The Collegium system introduced through the Second Judges case institutionalised the practice of consulting senior colleagues, making it binding on the chief justice," the bench said.

The high court contended that the chief justice of the high court can individually reconsider a candidate based on how resolutions are worded. This wide power of the collegium to direct reconsideration individually by the chief justice may not be curtailed, it argued. 

"We are disinclined to accept this view as it is well settled that the Supreme Court Collegium does not sit in appeal over the High Court Collegium," the bench said.

The court emphasised that it is a participatory process where each of the Constitutional functionaries has a role to play. 

"In our opinion, the language therein by itself cannot be understood as permitting the Chief Justice of the High Court to act on his own, in matters of recommendation or even reconsideration, for elevation to the High Court bench," the bench said.

The court held a writ petition filed by two senior most district and sessions judges of Himachal Pradesh as maintainable.

The petitioners sought direction to the high court to consider their names as directed by the collegium of the Supreme Court in its resolution on January 4.

They were aggrieved with the fact that the high court collegium without reconsidering their names had recommended two other judicial officers for elevation, which would amount to ignoring their seniority and long-standing unblemished service. 

A report was called from the high court's registrar general which stated that the Supreme Court Collegium's resolution of January 4, 2024 was never received by the chief justice of the high court. It also disclosed that on March 6, 2024, the chief justice of the high court individually addressed a letter to the Supreme Court Collegium on the suitability of the petitioners. It also pointed out a representation was made by one of the petitioners to the Chief Justice of India against non-consideration for elevation. This letter was alleged to be contemptuous.

Senior advocate Arvind Datar, appearing for the petitioners, argued that the issue of elevation had to be collectively considered by the high court collegium and not by the chief justice acting alone. 

As regards the letter written by one of the judicial officers to the CJI, he said, it only highlighted his judicial journey and the anguish for not being considered for elevation despite 17 years of exemplary service. 

The counsel also submitted the present writ petition was limited to ‘lack of effective consultation’ and hence was maintainable, as against the contention by senior advocate S Muralidhar for the high court.

The high court's counsel also said that the resolution of the Supreme Court Collegium did not specify that the reconsideration of the petitioners’ names was to be in consultation with the other members of the high court collegium. Therefore, the high court chief justice could have made a reconsideration all by himself.

Going through several judgements including Supreme Court Advocates-on-Record Association. Vs Union of India (1993) (Second Judges Case), the bench said that lack of effective consultation’ and ‘eligibility’ falls within the scope of judicial review, however, ‘suitability’ is non-justiciable and resultingly, the ‘content of consultation’ falls beyond the scope of judicial review.

"The absence of consultation amongst the members of the Collegium would be within the limited purview of judicial review," the bench said.

Dealing with the high court's contention, the bench said that the recommendation by the Supreme Court Collegium for reconsideration, is not expected to be addressed individually to all the members of the high court collegium. 

Such communications are naturally addressed to the Chief Justice of the concerned High Court. The letter addressed to the Chief Justice will not enable the Chief Justice to act without participation by the other two Collegium members, the bench said.

The bench said that the procedure adopted in the matter of reconsideration of the two petitioners was inconsistent with the law laid down in the Second Judges and the Third Judges case. 

"There was no collective consultation and deliberations by the members of the High Court Collegium. The decision of the Chief Justice of the High Court, on the suitability of the two petitioners as conveyed in his letter dated 6th March 2024, appears to be an individual decision. The same therefore stand vitiated both procedurally and substantially," the bench held.

Case Title: Chirag Bhanu Singh & Anr Vs High Court of Himachal Pradesh & Ors