GS Paper - II

The Supreme Court has directed the Himachal Pradesh High Court collegium to consider again the names of two judicial officers it had first recommended for elevation to the Bench 21 months ago. The unusual direction came after the affected individuals moved the Supreme Court against the HC collegium’s decision to recommend two other names for judgeship earlier this year.

What is the procedure for appointing judges of High Courts?

• The collegium system of appointment (and transfer) of judges of the Supreme Court and High Courts was laid down by a nine-judge Bench of the Supreme Court in Supreme Court Advocates-on-Record Association vs Union of India (1993), commonly known as the Second Judges Case.
• The ruling made the recommendations of the SC collegium binding on the Centre, and gave the power to appoint and transfer judges of the higher judiciary to the judiciary. Under the collegium system, judges choose judges — and while the government can delay their appointments, it cannot reject the collegium’s choice.
• In 1998, in response to a series of questions from then President K R Narayanan, the SC clarified how the collegium system would function. (Third Judges Case)
• The court said that collegiums for HC appointments would include the Chief Justice of India (CJI) and the two seniormost judges of the Supreme Court.
• This collegium would be required to consult the “Chief Justice and senior judges” of the HC concerned, the “seniormost” SC judge from that HC, as well as any SC judges who were “knowledgeable” about that HC.
• The court also spelled out the limited grounds on which a recommendation could be challenged. First, if there was lack of “effective consultation” with any of these individuals or institutions. Second, if the candidate in question was not “eligible” to be a judge — these qualifications are laid down in Articles 217 (High Court) and 124 (Supreme Court) of the Constitution.
• Following the opinion given by the SC in the Third Judges Case, the central government and the SC entered into a Memorandum of Procedure (MOP) in 1998, which detailed the process, from the beginning, for the appointment of HC judges.
• As a part of this process, the Chief Justice of the HC must consult two other seniormost judges at the HC — together forming the High Court collegium — and send their recommendations, with reasons, to the Chief Minister, the Governor, and the CJI.
• The Governor, based on the advice of the Chief Minister, will send the proposal to the Minister of Law and Justice at the Centre, who will conduct a background check and send the entire material to the CJI, who will consider it with the rest of the SC collegium.

So what happened in the Himachal Pradesh case?

• In December 2022, the then HC collegium comprising the then Chief Justice and then two seniormost judges recommended district judges Chirag Bhanu Singh and Arvind Malhotra for elevation to the HC.
• On 4 January 2024, the SC collegium sent the recommendation back to the HC Chief Justice for “reconsideration”. On 16 January, the Union Law Minister wrote to the HC Chief Justice, requesting that fresh recommendations be made for Singh and Malhotra.
• However, on 23 April, the High Court collegium recommended two other judicial officers for elevation to the HC, prompting Singh and Malhotra to approach the SC.
• They argued that the HC collegium had ignored their seniority (as the two seniormost district judges in the state) by recommending two other judicial officers without first considering them again (Chirag Bhanu Singh & Anr v High Court of Himachal Pradesh).
• The SC had in both the Second and Third Judges cases highlighted the importance of considering seniority among judges while making recommendations for appointments.
• In a report submitted to the SC by the Registrar General of the Himachal Pradesh HC, it was revealed that the HC Chief Justice had written to the SC collegium on the “suitability” of appointing the two judicial officers on 6 March 2024.
• The HC argued that this was in “full compliance” of the SC collegium’s 4 January resolution, which was addressed only to the HC Chief Justice.

What did the SC decide?

• MAINTAINABILITY: The SC first decided whether the case fell within the SC’s narrow scope for reviewing recommendations for appointments.
• Relying on the Second and Third judges case, the court held that this case was limited to whether there was “effective consultation” after the SC collegium’s 4 January resolution, and had “nothing to do with the ‘merits’ or the ‘suitability’ of the officers in question”.
• PROPER PROCEDURE: The second issue was whether the HC Chief Justice individually sending a letter (on 6 March) could qualify as “effective consultation”.
• The court held that even though the SC collegium’s 4 January resolution was addressed to only the HC Chief Justice, “the language therein by itself cannot be understood as permitting the Chief Justice…to act on his own, in matters of recommendation or even reconsideration, for elevation to the High Court Bench”.
• The court ruled that the decision must be made only after “collective consultation amongst the three Constitutional functionaries of the High Court i.e., the Chief Justice and the two senior-most companion judges”.