In what could mark a significant departure from the Memorandum of Procedure (MoP) that governs the process of appointment of judges to the higher judiciary, a month after the Supreme Court collegium reiterated its recommendations for the second time to appoint two advocates as judges of the Karnataka High Court, the government is yet to act on them.
On September 1, the collegium headed by Chief Justice of India NV Ramana reiterated its earlier recommendation for the second time to appoint advocates Nagendra Ramachandra Naik and Aditya Sondhi as judges of the Karnataka High Court.
Naik, a senior advocate originally from Bhatkal in Karnataka, was a CBI counsel appointed by the Congress-led UPA government. The collegium first recommended him on October 3, 2019 along with eight other advocates. While the government appointed the remaining, Naik’s recommendation was pending. The collegium then reiterated its recommendation on March 2 and then for the second time on September 1.
Senior advocate Aditya Sondhi, a graduate of the National Law School of India University, Bangalore, was the former Additional Advocate General under the Congress-ruled Karnataka government in 2016. Sondhi was first recommended by the collegium on February 4 and his name was reiterated on August 24. The second reiteration was made again on September 1.
Conventionally, the government is bound to accept the recommendation of the collegium if the decision has been reiterated. While the MoP does not specifically talk about reiteration of the collegium recommendations, it says that “the Union Minister of Law, Justice and Company Affairs, would then put up as early as possible, preferably, within 3 weeks, the recommendation or the Chief Justice of India to the Prime Minister who will advise the President in the matter of appointment.”
However, the 1998 landmark ruling, popularly referred to as the Third Judges case, held that the court will have the final say in judicial appointments.
“Non-appointment of anyone recommended, on the ground of unsuitability must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. If the Chief Justice of India does not find it necessary to withdraw his recommendation even thereafter, but the other Justice of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person for reasons to be recorded, may be permissible in the public interest. If the non-appointment in a rare case, on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment. However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made,” the court had ruled.
The 1993 Second Judges case (The Supreme Court Advocates-on-Record Association Vs Union of India), a nine-judge Constitution Bench and the Third Judges case evolved the collegium system of appointing judges. The two verdicts form the basis of the MoP, a formal document that governs the process.
Legal experts said the fact that the collegium had to reiterate its recommendation indicates that the MoP stands diluted. “Unfortunately but undoubtedly, yes,” said former Supreme Court judge Madan Lokur when asked by The Indian Express if the event is a departure from convention.
“The MoP has no sanctity left. The judiciary must be firm and that’s it,” Justice Lokur said. He added that it should not take more than a day for the SC to clear its stand on the recommendations.
Senior advocate Harish Salve, however, said that the MoP is not “set in concrete” and deviations are permissible. “The MoP governs the process but is not set in concrete. It does not mean that it should be implemented the same way, say like the Income Tax Act,” Salve said.
There are at least three other instances in which the collegium has had to reiterate its recommendations multiple times.
In the case of Karnataka High Court judge Krishna Bhat, the government appointed Bhat after his name was reiterated thrice by the collegium between 2016 and 2019. Bhat was accused of alleged sexual harassment and had faced an internal inquiry after he was first recommended.
Allahabad High Court advocate Amit Negi was first recommended by the collegium in August 2016 and his name was reiterated twice in November 2016 and August 2018. In January 2019, the collegium, considering objections from the government, withdrew its recommendations.
Calcutta High Court advocate Sakya Sen, son of former HC judge Shyamal Sen, was first recommended by the collegium in December 2017. However, the collegium, in August 2018, sent the name back to the high court for reconsideration. In July 2019, the Supreme Court once again recommended Sen after the Calcutta HC sent his name again. Sen is yet to be appointed.