SC asks Himachal HC collegium to reconsider names of two judicial officers for elevation as HC judges

New Delhi: The Supreme Court on Friday held the Chief Justice of a High Court cannot individually reconsider a recommendation for elevation of a judge as such a decision is taken by the Collegium acting collectively.

A bench of Justices Hrishikesh Roy and Prashant Kumar Mishra said 'lack of effective consultation’ and ‘eligibility’ falls within the scope of judicial review.

However, ‘suitability’ is non-justiciable and as a result, the ‘content of consultation’ falls beyond the scope of judicial review.

The court 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 bench relied upon the Supreme Court's judgements including 'Supreme Court Advocates-on-Record Association Vs Union of India' (1993) (Second Judges Case), to hold two judges' writ petition questioning their non consideration for elevation of the High Court judges as maintainable.

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

On their writ petition, the court found the decision communicated by the Chief Justice of the High Court by a letter of March 6, 2024 "appears to be an individual decision" and is "vitiated both procedurally and substantially".

"There was no collective consultation and deliberations by the members of the High Court Collegium," the bench said.

The court noted two other judges of the High Court Collegium were not consulted.

"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 bench said.

The court rejected a contention by senior advocate S Muralidhar, appearing for the HP High Court that Chief Justice of the High Court can individually reconsider a candidate based on how resolutions are worded.

The court said the language of resolution 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.

"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 petitioners led by senior advocate Arvind Datar contended the High Court Collegium without reconsidering their names recommended two other judicial officers for elevation, ignoring their seniority and long-standing unblemished service. The petitioners claimed they were direct recruit and senior most judges in district judiciary.

They said the issue of elevation has to be collectively considered by the High Court Collegium and not by the Chief Justice acting alone.

The bench agreed with their contention that collaborative deliberations bring in 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.

With regard to a letter written by one of the petitioners to the CJI with objectionable remarks directed at the Supreme Court Collegium, the bench said, it is definitely an expression of hurt by the judicial officer, but will not bring the letter into the contemptuous category.

"There is also a need to protect certain sensitive information in matters involving appointment of judges. While transparency is necessary to ensure fairness and accountability, it must be carefully balanced with the need to maintain confidentiality. Disclosing sensitive information would compromise not only the privacy of the individual but also the integrity of the process," the bench said.