Reports that lawyer Nagendra R. Naik – whom the Supreme Court collegium had recommended as a judge of the Karnataka high court in 2019 – has formally withdrawn his consent for the recommendation are unlikely to come as a surprise.
Naik’s decision to withdraw his consent stems from reports that the SC Collegium could formally ‘recall’ its recommendation after he contested the Karnataka assembly election on a Janata Dal (Secular) ticket. Naik lost.
The Collegium is learned to have considered this as a misconduct, considering that its recommendation is still pending with the government.
According to The Indian Express, the SC Collegium had reiterated its recommendation three times, twice in 2021 and recently on January 10.
As per the Supreme Court’s judgment in Second (1993) and Third (1998) Judges’ cases, a recommendation, once reiterated by the Collegium after reconsideration, is binding on the executive. However, there have been several cases of the executive not acting upon the Collegium’s reiterated recommendations in recent times, by simply not issuing notifications of appointment. The Collegium is helpless when the government does not notify an appointment within a reasonable time after it reiterates a recommendation. This is because judgments in Second and Third Judges cases did not envisage a situation where the government would exercise a pocket veto.
The inordinate delay in notifying Naik’s appointment apparently led to him assuming that the Collegium’s recommendation had reached a dead end. Naik probably wanted to preempt the Collegium’s revocation of his appointment – something which would have caused him considerable embarrassment.
Indeed, Naik could not be faulted for his decision to contest the recent assembly elections, with the government continuing to maintain suspense over notifying his appointment as a judge, despite the Collegium reiterating its recommendation three times. He might have assumed that he could take a call if at all he won the seat (and the government notified his appointment as a judge).
Despite his association with a political party at the time of elections, the option to formally resign from that party, in the event of the government appointing him as a judge of the high court, was open to him. Therefore, had the Collegium indeed been considering a ‘misconduct’ report against Naik, it would have had to explain why it considers contesting elections as a candidate of a political party grounds for disqualification when the government has ignored the Collegium’s recommendation three times.
Naik has defended himself by suggesting that he assumed that the Supreme Court’s recent judgment in Anna Mathew vs Supreme Court of India applied to him as well. In this case, the Supreme Court refused to stay the swearing-in of a judge in the Madras high court, following reports that the Collegium did not consider materials suggesting that she had an active political background, and had expressed views in the public domain which were not in consonance with constitutional values.
In paragraph 8 of this judgment, the two-judge bench of Justices Sanjiv Khanna and B.R. Gavai noted:
“During the course of hearing before us, it was accepted that a number of persons, who have had political backgrounds, have been elevated as judges of the High Courts and the Supreme Court, and this by itself, though a relevant consideration, has not been an absolute bar to appointment of otherwise a suitable person.”
Take another case – Senior Advocate Aditya Sondhi, whom the SC Collegium had recommended for appointment as a judge of the Karnataka high court in February 2021. However, after a year’s impasse, Sondhi withdrew his consent. He suggested that “one year was more than a reasonable time to have waited.” Sondhi has been a senior advocate of the high court since 2014 and has served as the Additional Advocate General for the Karnataka government. He was appointed to that post in 2016.
The Union government had segregated Sondhi’s name from those of two other district judges, whose elevation as HC judges the Collegium had recommended. The government had notified the appointment of the latter. The separation, and the government’s inaction despite the Collegium reiterating its recommendation once convinced Sondhi that the government would delay his appointment indefinitely.
He claimed that his decision to withdraw his consent was driven by his sense of self respect as also a need to stand up for the bar, which deserves to be treated fairly. In his interview to The News Minute, Sondhi disclosed that the Collegium did not even respond to his formal letter withdrawing his consent for its recommendation.