SC Collegium's focus on discipline, behaviour in judges' appointments commendable, but refusal to set benchmarks reeks of irony

Recently, The Telegraph reported that the Supreme Court Collegium has rejected the elevation of three high court chief justices on the basis of several unknown reasons.

It says that one of the judges was rejected because of his frequent visits to golf courses with other brother judges. This was done by the chief justice by taking a holiday during the time the court was in session even though the particular high court had a massive backlog of cases.

Another judge was rejected on the ground of him misusing taxpayers’ money by frequently using helicopters of the state. While the government allows for judges to use the helicopter services in case of genuine need to travel like a medical emergency, the overuse of it is not something that is against the rules but shows poorly on a judge, who has assumed his office to serve the people. It also reflects the colonial hangover, which still dominates the judiciary quite overwhelmingly.

The name of the third judge was not cleared on the grounds of him passing an adverse order against a public service commission merely to please a retired Supreme Court judge. The judge had not the heard the case on its merits and had coloured his judgment based on a letter, which he had received from the retired judge, which taints not only the name of the judge but in that respect the office which he is holding. This is also symptomatic of the nepotism which has plagued the judiciary, since independence.

The highly placed source of The Telegraph informed that the Supreme Court doesn’t want to make the names public but would refrain from elevating them due to their lack of judicial discipline.

It must be remembered that the process of selection of judges might sometimes be harder than it would appear. While there is a settled proposition that the elevation of judges is to happen according to their seniority (after all the Chief Justice of the country is decided on the same constitutional norm), one should not overlook other factors at play when the question is posed before the Collegium. An exclusive emphasis on the seniority factor, also demands a critical compromise on the merit of the future judges, which is reflected in the efficiency of the judicial process.

The Collegium must go through numerous documents on the record before taking the decision to elevate an individual as a judge. Although there are no fixed criteria to determine the eligibility of a person for a judgeship, a peek into the previous Supreme Court collegium reports can help us understand the different factors that the Supreme Court takes into consideration.

The first and foremost factor which is taken into consideration is the Intelligence Bureau (IB) report on the character of the judge. The weight afforded to it varies, but a black mark on the report can destroy a person’s chance for the judgeship. Another factor is the quality of the judgments delivered by the judge. This is with relation to the elevation of a judge to the Supreme Court or the elevation of a civil or sessions judge to a high court.

Income also plays an integral part because there are various provisions which set out the minimum professional income required for a person to be elevated as a judge. The elevation of advocate Piyush Chaturvedi to the position of a judge of Calcutta High Court was rejected on the same ground.

The prescribed age limit is also taken into consideration both on the lower end as well as on the higher end.

Apart from these, tax returns of the person, the reservations of the governor of the state, the regional representation of the state in the Supreme Court, the pro bono work of the person, judicial misconduct, lack of judicial discipline, frequent absence, behaviour not in synchrony with the high judicial standards expected of any judge, etc, have also been factors, which the collegium has taken into consideration before elevation of a person as a judge.

However, the problem is not the existence of such criteria; it is the selective application in the absence of a written standard operating procedure. The Collegium, therefore, decides to do away with the application of any of these criteria, as and when it deems fit.

A scrutiny of the resolutions of the Collegium shows that there is no fixed formula for determination of the eligibility. What is necessary is the fact that whenever there is a resolution appointing a judge, then it should have the backing of sound reasons and logic.

The Supreme Court has itself held in a catena of judgments that the non-providence of reasons is the denial of the principle of natural justice to a person. However, the legal fraternity was left quite surprised when the resolution of Justice Sanjiv Khanna for elevation as a judge of the Supreme Court did not mention the exact reasons as to why his name has been preferred over other senior judges of the high court. This is not to impute any mark of ill-will on the Supreme Court; the public would still provide them with the benefit of the doubt of taking a wise, judicious decision of appointing the right person for the job. However, the transgression of the apex court itself from providing reasons for the elevation was something that left the public quite surprised.

It is a very well-known fact that since the inception of independent India, it is the Supreme Court which has read down the Constitution in a manner that safeguards the democracy of the country. It is commendable on the part of the court to turn down the names of these three judges for want of judicial discipline as well as for behaviour not in synchrony with the high judicial standards expected of any judge.

However, it needs to be stressed, that this is not enough. It is high time the Supreme Court Collegium lays down objective criteria of the basis of its decisions of selection or non-selection, to protect and preserve the sanctity of the institution. It is ironical that the higher judiciary routinely sets aside or reinstates appointments to various government offices but refuses to set even a benchmark for appointment to the constitutional office of a high court or the Supreme Court.

The author is an assistant professor of Law at Maharashtra National Law University, Mumbai