High Court Chief Justice Cannot Individually Reconsider Judges' Appointment, Must Be Collectively Done By Collegium : Supreme Court

While directing the Himachal Pradesh High Court Collegium to reconsider the elevation of two District Judges, the Supreme Court held that the Chief Justice of a High Court cannot individually reconsider a recommendation.

The Court reiterated that the decision has to be taken collectively by the Collegium (comprising CJ and two senior judges) after deliberations.

"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 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," observed the bench comprising Justices Hrishikesh Roy and Prashant Kumar Mishra.

The Court delivered the judgment in a writ petition filed by two senior district judges of Himachal Pradesh aggrieved by the High Court Collegium ignoring their elevation.

The petitioners were recommended by the then Collegium of the High Court on 6th December 2022 for elevation . On 12th July 2023, the Supreme Court Collegium, however, deferred their consideration. Thereafter, on 4th January 2024, the Supreme Court Collegium resolved that the proposal for the elevation of both be remitted for reconsideration to the Chief Justice of the Himachal Pradesh High Court. However, the High Court Collegium instead recommended the elevation of two other judges.

Responding to the petition, the Registrar General of the High Court submitted a report to the Supreme Court. It was informed that on 6th March 2024, the Chief Justice of the High Court individually addressed a letter to the Supreme Court Collegium on the suitability of the petitioners. This was projected to be in full compliance of the resolution dated 4th January, 2024 of the Supreme Court Collegium.

Writ petition maintainable when the issued of eligibility and lack of effective consultation are raised

The judgment authored by Justice Roy first dealt with the preliminary objection to the maintainability of the petition. Reference was made to the judgment in Mahesh Chandra Gupta v. Union of India (1998) 7 SCC 739 which drew a distinction between 'eligibility' and 'suitability' of a candidate for elevation. Reliance was placed on the judgment in Anna Mathews v. Supreme Court of India 2023 LiveLaw (SC) 93

The Court held that the following propositions emerged from the precedents :

1. 'Lack of effective consultation' and 'eligibility' falls within the scope of judicial review.
2. 'Suitability' is non-justiciable and resultingly, the 'content of consultation' falls beyond the scope of judicial review.

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

Chief Justice cannot individually decide

The Court referred to the judgments in the Second Judges case and the Third Judges Case which institutionalised the collegium system, ending the primacy of the Chief Justice. The collegium system introduced through the Second Judges case, institutionalized the practice of consulting senior colleagues, making it binding on the chief justice, the Court noted.

An argument was raised on behalf of the High Court that since the Supreme Court's resolution requested the Chief Justice to reconsider the names of the petitioners, the CJ can take an individual decision.

"We are disinclined to accept this view as it is well- settled that the Supreme Court Collegium does not sit in appeal over the High Court Collegium. It is a participatory process where each of the Constitutional functionaries have a role to play," the Court said. It added that the Supreme Court Collegium can't be expected to to be addressed individually to all the members of the High Court Collegium. Such communications are naturally addressed to the Chief Justice of the concerned High Court. The letter addressed to the Chief Justice will not enable the Chief Justice to act without participation by the other two Collegium members.

"The procedure adopted in the matter of reconsideration of the two petitioners is found to be inconsistent with the law laid down in the Second Judges (supra) and the Third Judges case(supra). There was no collective consultation and deliberations by the members of the High Court Collegium. The decision of the Chief Justice of the High Court, on the suitability of the two petitioners as conveyed in his letter dated 6th March 2024, appears to be an individual decision. The same therefore stand vitiated both procedurally and substantially," the Court observed.

The Court answered the issues as follows :

(i) The writ petition is maintainable as it questions the lack of effective consultation;

(ii) The Chief Justice of a High Court cannot individually reconsider a recommendation and it can only be done by the High Court Collegium acting collectively.

It was directed that the High Court Collegium should now reconsider the names of Mr. Chirag Bhanu Singh and Mr. Arvind Malhotra for elevation as Judges of the High Court following the Supreme Court Collegium decision dated 4th January,2024 and the Law Minister's letter dated 16th January,2024.

Case no. – WP(C) No. 312/2024