Two senior-most district judges from Himachal Pradesh have approached the Supreme Court to challenge the selection process of judges by the collegium of their state High Court. The judges have raised questions on the decision of the HC collegium and alleged that it ignored their merit and seniority during the selection process. They further alleged that the collegium overlooked the specific advice of the Supreme Court collegium headed by Chief Justice of India DY Chandrachud to consider their names for promotion.
Notably, district judges of Bilaspur and Solan, Chirag Bhanu Singh and Arvind Malhotra, respectively, have filed a joint writ petition before the Supreme Court. They have requested the apex court to direct the collegium of the Himachal Pradesh High Court to consider their names as per SC collegium’s 4th January resolution. They have also requested the apex court to stay the names of junior judicial officers for consideration by the SC collegium till their grievances are addressed.
The petitioners said that the HC collegium last month “deliberately omitted their names”. According to them, it overlooked their seniority and merit, and recommended names of two “ineligible junior officers” to the SC collegium for appointment as HC judges, as reported by Times of India.
The petitioning district judges noted that after the Supreme Court collegium sent their names back to the High Court for reconsideration, the Union law minister communicated with the High Court Chief Justice, urging him that the HC collegium reconsider the names of Singh and Malhotra for appointment as judges of the state High Court.
They added that the HC collegium ignored the SC collegium’s advice and the law minister’s letter. The petition further states that without reconsidering their names, the HC collegium started calling for judgments of judicial officers much junior to them in a bid to step around their merit, seniority, and “unblemished judicial track record”.
They said, “The facts and circumstances of the present case exhibit that petitioners’ valuable constitutional rights, pertinently their right to be considered, are being violated.”
Last year, the HC collegium recommended the names of Singh and Malhotra, the petitioners in this case, for appointment as judges of Himachal Pradesh HC. However, when their names were placed before the SC collegium for consideration on 12th July 2023, it initially deferred their names. However, months later on 4th January 2024, the CJI-led collegium remitted their names to the HC collegium for reconsideration.
Demanding that the decision of the HC collegium regarding the appointment process be set aside, they said, “The process adopted by the HC collegium stands procedurally & substantially vitiated & is contrary to established constitutional convention. Action of HC chief justice & the collegium is thus liable to be set aside.”
Collegium System has been at the centre of criticism with legal luminaries voicing support for a reformed system
The petition highlights a broader concern regarding a frequently raised complaint that High Court collegiums do not meticulously follow the process devised by the Supreme Court for selecting judicial officers and lawyers for appointment as High Court judges.
The selection process of judges by the collegium system has attracted criticism from renowned legal luminaries including retired Justices. Critics have pointed out that the system faces acute problems of lack of transparency, favoritism, and lack of methodical nature in appointing judges. Senior Advocate and Former Solicitor General of India, Harish Salve had categorically stressed that the collegium system, riddled with several shortcomings, should be abolished. Critical of the Collegium system, he noted that nowhere in the world does the judiciary appoint itself and that it should make way for a reformed appointment system.
Chairman of the Drafting Committee of the Constitution of India, Dr. BR Ambedkar too had a critical view regarding judges appointing judges. Regarding this, he opined, “I personally feel no doubt that the Chief Justice is very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and prejudices which we as common people have. To allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we (are) not prepared to vest in the President or the government of day. I therefore think, that is also a dangerous proposition.”
The National Judicial Appointments Commission (NJAC) which was devised as the alternate appointment system for judges was struck down by the apex court as “unconstitutional”. However, several Justices have stressed that the top court shouldn’t have struck it down completely. Regarding this, Retired Justice SK Kaul noted that NJAC with tweaks could’ve worked but it was buried before it began.
