SC elevations: Legitimate expectation, non-appointment and the Second Judges Case

The apparent opacity of the procedure of elevation of judges to the Supreme Court and the deliberations of the collegium are certainly sending a few skeletons tumbling out of the closet..Earlier this week, it was reported that the collegium had recommended the names of five high court judges for elevation to the apex court. Among them were Sanjay Kishan Kaul, Chief Justice of the Madras High Court, Deepak Gupta, Chief Justice of the Chhattisgarh High Court, Navin Sinha, Chief Justice of the Rajasthan High Court, Mohan Shantanagoudar, Chief Justice of the Kerala High Court, and Justice Abdul Nazeer of the Karnataka High Court..As we reported earlier, the other names rumoured to be in the reckoning included those of Justice Manjula Chellur, Justice Paul Vasanthakumar, Justice G Rohini and Justice KM Joseph..In recent days, the media has been abound with speculation as to why these names have not been recommended, especially since some of them are more senior to the ones which have been thrown into the hat..Below is a list of the senior-most Chief Justices of the high courts:.Chief JusticeHigh CourtDate of retirementPaul VasanthakumarJammu & Kashmir14/03/2017G RohiniDelhi13/04/2017Mansoor Ahmad MirHimachal Pradesh24/04/2017Deepak GuptaChhattisgarh06/05/2017PK MohantyJharkhand09/06/2017Rakesh Ranjan PrasadManipur30/06/2017NN Mhatre (Acting)Calcutta19/09/2017SK MukherjeeKarnataka09/10/2017Manjula ChellurBombay04/12/2017.In fact, Justice J Chelameswar, a member of the current collegium, is reported to have expressed his regret at the fact that Justice Joseph has not been recommended for elevation, calling the Chief Justice of the Uttarakhand High Court an “outstanding judge who deserves to be elevated”..To make sense of the recent happenings, one must delve into the procedure of elevation to the Supreme Court. Although there exist no hard and fast rules regarding the same, a reading of the Second Judges case of 1993 offers some perspective..In Supreme Court Advocates-on-Record Association and Anr. v. Union of India, it was held on the topic of elevation on the basis of seniority,.“Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court..…Due consideration of every legitimate expectation in the decision making process is a requirement of the rule of non-arbitrariness and, therefore, this also is a norm to be observed by the Chief Justice of India in recommending appointments to the Supreme Court..…Obviously, this factor applies only to those considered suitable and at least equally meritorious by the Chief Justice of India, for appointment to the Supreme Court.”.On the topic of legitimate expectation of appointment, the majority view in that case was,.“Just as a High Court Judge at the time of his initial appointment has the legitimate expectation to become Chief Justice of a High Court in his turn in the ordinary course, he has the legitimate expectation to be considered for appointment to the Supreme Court in his turn, according to his seniority..…Where, therefore, there is outstanding merit the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all India seniority list or in his own High Court.”.It appears that the present collegium has viewed the seniority rule as a mere guideline and opted to side with merit over experience. Which, according to the aforementioned paragraphs, they are well entitled to do..While that may explain why some Chief Justices have been recommended and others have not, it does not explain why Justice Joseph was overlooked. Here’s what the court said in 1993 on the topic of non-appointment:.“Non-appointment for reasons of doubtful antecedents relating to personal character and conduct, would also be permissible. The condition of health or any such factor relating to the fitness of the candidate for the office may also justify non-appointment.”.This, coupled with the fact that the collegium had recommended Justice Joseph’s transfer from Uttarakhand to the High Court of Judicature at Hyderabad on medical grounds, might offer a semblance of an explanation as to why he has been omitted..Ostensibly curiouser is the recommended elevation of Justice Abdul Nazeer, the only judge among the five who is not a Chief Justice. In fact, he is fourth in the seniority list at the Karnataka High Court, after Chief Justice SK Mukherjee and Justices Jayant Patel and HG Ramesh..But a closer look at the elevations to the apex court post the Second Judges case reveals that this has happened quite a few times. Two of these judges – RC Lahoti and Rajendra Babu JJ – even went on to become Chief Justice of India..JudgeParent High CourtDate of appointmentFaizanuddin, JMadhya Pradesh14/12/1993SC Sen, JCalcutta11/06/1994KT Thomas, ACJKerala29/03/1996Rajendra Babu*Karnataka25/09/1997SSM Quadri, ACJAndhra Pradesh04/12/1997RC Lahoti*#Madhya Pradesh09/12/1998Ruma PalCalcutta28/01/2000Ashok Bhan, ACJ**Punjab & Haryana17/06/2001GP Mathur, ACJAllahabad20/12/2002LS PantaHimachal Pradesh03/02/2006RP DesaiBombay13/09/2011.*Went on to become CJI.#Was transferred to Delhi HC before elevation.**Was transferred to Karnataka HC before elevation.Moreover, the Second Judges case also notes that other factors, coupled with merit and seniority, may be looked into while elevating judges..“Along with other factors, such as, proper representation of all sections of the people from all parts of the country, legitimate expectation of the suitable and equally meritorious Judges to be considered in their turn is a relevant factor for due consideration while making the choice of the most suitable and meritorious amongst them, the outweighing consideration being merit, to select the best available for the apex court.”.Apart from his merit, the fact that Justice Nazeer belongs to the Muslim community might have something to do with his recommendation. The Supreme Court is devoid of representation from this community after the retirement of Justice MY Eqbal and FMI Kalifulla last year..However, it does not explain why Justice Chellur’s name has not been recommended, especially given the fact that the apex court has just one woman judge..In any case, the collegium might make more recommendations in the coming weeks, since there are eight vacancies in the apex court as of now. There is also the fact that the Centre will have its say in the final appointments..Even as Justice Chelameswar laments the lack of transparency in the process of elevations, we will have to trust the rest of the collegium’s wisdom..Image courtesy: .KM Joseph J. .RC Lahoti J. .Manjula Chellur J..Abdul Nazeer J.