collegium's December 12 proposal

Bar Council of India questions SC collegium

NEW DELHI: The unauthorised leak of names of judges even before recommendations were finalised under the memorandum of procedure, along with fresh "adverse" material, made CJI Ranjan Gogoi recall theto appoint Rajasthan HC Chief Justice Pradeep Nandrajog and Delhi HC CJ Rajendra Menon as SC judges.Asserting his constitutional authority that "no appointment can be made in the SC unless the recommendation is made by the CJI", Justice Gogoi disapproved of names being considered for elevation and transfer appearing in the media, especially on legal websites, which gave the impression that a final decision had been taken, sources said. "Certain names came to be published in the print/electronic media on December 13 though the consultation process in terms of MoP, pursuant to recommendations made by the collegium, had not been set in motion till then," a source said."Taking serious note of the incident, the CJI decided to hold back the recommendation and decided to place it before the collegium again instead of taking the next step of consulting other colleagues," a source said.In the meantime, Justice Madan B Lokur retired and Justice Arun Mishra entered the collegium, which also had CJI Gogoi and Justices A K Sikri, S A Bobde and N V Ramana. The new collegium met on January 5-6 and "deemed it appropriate to recall the December 12 collegium recommendations and decided to have a fresh look at names for appointment as SC judges", sources said.The decision of the collegium not to pursue its earlier discussions was criticised by the Bar Council and some former judges, including ex-CJI R M Lodha, on the grounds that the decisions would upset seniority and needed to be explained. There have, however, been precedents when seniority has not been the sole criterion for elevation.On December 12, the collegium had also decided to transfer Himachal CJ Surya Kant as CJ of Delhi HC and Justice D S Thakur (brother of ex-CJI T S Thakur) from J&K HC to Calcutta HC. The recommendation containing these names was rescinded.Sources said a proposal to transfer Justice Shripathi Ravindra Bhat of Delhi HC as chief justice of Rajasthan HC was informally discussed in the collegium on December 12. "A legal website on December 12 itself published that Justice Bhat is likely to be transferred as Rajasthan CJ even when the formal collegium meeting of CJI Gogoi and Justices Lokur and Sikri was to be held on December 13. Miffed by the publication, the CJI did not convene the collegium meeting on December 13," a source said.Sources quoted the second judges case judgment of 1993 giving sole authority to the CJI to initiate a proposal for the appointment of judges to the apex court. "In other words, no appointment can be made in the SC unless the recommendation is made by the CJI," the source said.Citing numerous precedents, the source said, "The CJI, on second thoughts, can reconsider the recommendation and, for good reasons on the basis of fresh adverse information/material coming to knowledge, decide to hold back or recall a recommendation (which had been initiated by him) even if it has been signed by other members of the collegium. A recommendation already forwarded to the government can also be recalled for good reason by the CJI on his own or in consultation with the collegium members."Explaining why the collegium's December 12 recommendation, which was signed by all members, was not uploaded on the SC website as has been the practice since October 3 last year, the source said, "Incomplete recommendations, where the consultation process has not yet been undertaken, are not supposed to be published."Asked what the adverse material warranting scrapping the recommendation for appointment of Justices Nandrajog and Menon was, the source said, "Disclosure of adverse material relating to the dropped names is not likely to benefit any institution or any section of legal fraternity or the public at large. It would rather be against either the institutional interest or judges whose names were recommended, who thereafter would not be able to function as chief justices or judges of HCs."Asked to explain how the name of Karnataka CJ Dinesh Maheshwari, who was ignored earlier by the collegium comprising CJI Dipak Misra and Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph, was considered afresh, the source said, "Unless a chief justice or a judge who was ignored earlier has not been declared unfit or unsuitable for elevation for all times to come, s/he can be considered at a later stage. Justice Maheshwari, whose appointment is being questioned, was not declared unfit or unsuitable when the junior judge hailing from the same HC (Justice Ajay Rastogi) was recommended and elevated to the SC."