Another rumour or a Collegium controversy? Justice AK Goel's objection to the appointment of Justice Surya Kant

Bar & Bench January 21 2019

Even as the clamour surrounding the elevation of two new judges to the Supreme Court lingers, a past Collegium controversy seems to have been exhumed. After the recent elevations of Justices Sanjiv Khanna and Dinesh Maheshwari, rumours suggest that the next two judges to follow them to the Supreme Court are Justice Bhushan Gavai of the Bombay High Court and Chief Justice Surya Kant of the Himachal Pradesh High Court.

If elevated, both Justice Bhushan Gavai and Justice Surya Kant will serve as Chief Justice of India after Justice Sanjiv Khanna retires in 2025. Justice Bhushan Gavai will have a tenure of 6 months, while Justice Surya Kant will have a tenure of nearly 1 year and 3 months as Chief Justice of India. Currently, Justice Gavai is the fourth senior most judge in the Bombay High Court, and Justice Surya Kant is the Chief Justice of the Himachal Pradesh High Court.

What are the rumours doing the rounds?

Assuming that the information is credible, the first question would be: why were Justices Rajendra Menon and Pradeep Nandrajog not considered to be Supreme Court judges ahead of Justices Gavai and Surya Kant?

According to sources, the Collegium had met in December, 2018 and apparently approved the names of Justice Rajendra Menon, currently Chief Justice of the High Court of Delhi, and Justice Pradeep Nandrajog, currently Chief Justice of the Rajasthan High Court, for elevation to the Supreme Court.

However, before this decision was formally announced, Justice Madan Lokur retired from the Supreme Court, and Justice Arun Mishra joined the Collegium in his place. The reconstituted Collegium met in the second week of January 2019 and proceeded to discard the decisions taken just a week before.

Coming back to Justice Surya Kant, if the rumours are true, it becomes relevant to take a look at the controversy surrounding his appointment. Especially in light of the fact that if elevated, he is in line to become the 53rd Chief Justice of India.

Last year, Indian Express had reported that former Supreme Court judge, Justice AK Goel had penned a letter to then Chief Justice of India Dipak Misra (On January 12, 2018 – the same day as the Judges Press Conference) disagreeing with the proposal to appoint Justice Surya Kant as Chief Justice of the Himachal Pradesh High Court.

Justice AK Goel was the Supreme Court between 2014-18. He is currently the chairperson of the National Green Tribunal

Justice Goel, being a Supreme Court judge well-versed with the goings-on of the Punjab & Haryana High Court (his parent High Court), had been asked to give his views regarding certain allegations of corruption against Justice Surya Kant, who was then a judge of the Punjab & Haryana High Court.

This, after the Supreme Court Collegium had, on January 11, 2018, recommended Justice Kant for appointment as Chief Justice of the Punjab & Haryana High Court.

In his letter, Justice Goel had expressed his disagreement with the recommendation, until an inquiry into the allegations against Justice Kant was conducted. Further, while recommending Surya Kant J’s name for elevation, the Collegium had superseded Justice AK Mittal, who was more senior to Kant J. On this point, Justice Goel stated in his letter,

I had given my opinion dated 11th March 2017 inter-alia suggesting obtaining of independent valuation reports of the properties acquired by the Judged mentioned therein. I had also given opinion about other complaints relating to corruption and casteism (A copy of the opinion is annexed for ready reference)…

...I had received letter dated 10th April, 2017 from the then Chief Justice of lndia seeking my opinion about the proposal to appoint Justice A.K. Mittal as Chief Justice of Delhi High Court. I gave my opinion. The then Chief Justice of lndia, being from the same parent High Court, was more conversant with the comparative merit and suitability of both the Judges. Some members of the Collegium were part of the earlier Collegium also. l, therefore, do not concur with the view that on consideration of all relevant factors, Mr. Justice Surya Kant is more suitable.

Justice Goel’s opinion eventually counted for little, with the Collegium sticking by its initial decision. Thus, by a notification dated October 3, 2018, Justice Kant was appointed as Chief Justice of the Himachal Pradesh High Court. Goel J’s calls for an inquiry into the allegations made against Kant J never took place, and the controversy was seemingly swept under the carpet.

And now, if the talk in the Supreme Court corridors is to be believed, Justice Kant may well find himself at the Supreme Court.

Justice Goel's opinion on the allegations made against Justice Surya Kant raises serious questions that require closer examination. If a probe into these charges is not conducted, it will cast doubts on the office of the Chief Justice of India, a post Justice Kant will occupy for more than one year if elevated to the Supreme Court.

The only question that remains is whether the potential elevations are just rumours, or will be we witness to yet another Collegium controversy?

Corrigendum: This article initially mentioned that Justice Surya Kant, if elevated. would have  a tenure of 2 years and 3 months as CJI. The error is regretted.