Now That the SC Has 9 New Judges, Who's Responsible for Their Belated Elevation?

The swift clearance of the appointment of nine judges by the SC Collegium and the Union government, soon after Justice R.F. Nariman’s retirement, makes one wonder whether he is the fall guy for the inordinate delay in their elevation.   

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The Chief Justice of India, N.V. Ramana described Justice Rohinton Fali Nariman, who retired on August 12, as one of the lions of the Indian judiciary.  

The CJI could well have added that Justice Nariman was perhaps the only lion in the Supreme Court to protect the institution from the executive’s influence in the appointment of judges.   

The CJI’s use of the lion as the metaphor to describe Justice Nariman might have stemmed from his own experience of how the SC Collegium has been unable to recommend new judges to the Supreme Court during Justice Nariman’s membership of the Collegium. Justice Nariman was the lone voice in the five-member Collegium comprising the CJI and four senior-most puisne judges to oppose appointment of new judges to the Supreme Court before the elevation of Justice Akil Kureshi, Chief Justice of Tripura high court, in view of his seniority over other nominees. 

The speed with which the appointment of nine judges to the Supreme Court materialised soon after Justice R.F.Nariman’s retirement makes one wonder whether the other judges of the Collegium were waiting for him to retire, in order to go ahead with fresh appointments to avoid further delay. 

It cannot be denied that the nine judges sworn in on Tuesday deserved to be spared further delay in the process of their appointment. But for the delay, these nine judges could have had longer terms at the apex court than what they are now entitled to, given their age of superannuation at 65. For this, the SC Collegium should collectively own the blame, while Justice Nariman’s role was perhaps that of a dissenter.   

In the normal course, a dissenter’s influence in the outcome of deliberations should be negligible. But in the peculiar nature of the SC Collegium’s functioning, as mandated by the Supreme Court’s judgment in the Second Judges case, it is not easy to dismiss the concerns of a dissenter as of no consequence. Justice Nariman’s role, therefore, has to be  assessed with proper perspective, lest history judge him as having used a non-existent veto power, to effectively scuttle appointments for nearly 20 months. 

CJI N V Ramana administers oath of office to the nine newly-appointed judges in the Supreme Court Auditorium, in New Delhi, Tuesday, Aug 31, 2021. Photo: PTI

Legitimate expectation as a rule of non-arbitrariness

In the Second Judges case, the nine-judge bench held that inter se, seniority amongst judges in their high courts and their combined seniority on an all-India basis is of admitted significance in the matter of future prospects. Inter se, seniority amongst judges in the Supreme Court, based on the date of appointment, is of similar significance. The bench, therefore, observed that it is reasonable that this aspect is kept in view and given due weight while making appointments from among high court judges to the Supreme Court. 

Unless there are any strong cogent reasons to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court, the bench added. Apart from recognising the legitimate expectation of the high court judges to be considered for appointment to the Supreme Court according to their seniority, this would also lend greater credence to the process of appointment and would avoid any distortion in the seniority between the appointees drawn even from the same high court, the bench had held. 

The bench reasoned that the likelihood of the Supreme Court being deprived of the benefit of the services of some who are considered suitable for appointment, but decline a belated offer, would also be prevented. 

Also read: Justice Akil Kureshi Elevation: Should Token Gender Empowerment Trump Fairness?

The same bench also added that 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 CJI in recommending appointments to the Supreme Court. 

Obviously, this factor applies only to those considered suitable and at least equally meritorious by the CJI, for appointment to the Supreme court, the bench clarified. Just as a high court judge at the time of his initial appointment has the legitimate expectation to become CJ 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, the bench explained. 

The bench further observed: 

“This legitimate expectation has relevance on the ground of longer experience on the Bench, and is a factor material for determining the suitability of the appointee.  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.”

Justice A.M. Ahmadi, in his dissent, was conscious of the problems that might arise if the principle of seniority is followed blindly. The first four judges in all-India seniority may be from a single high court. If you appoint all of them, the ‘representative’ character of the court will be disturbed, he said. He then considered another instance where a senior-most judge of high court X could be 50th in India when it comes to seniority, leading to a situation where there will not be a single judge in the apex court from a high court, even if that is one the major high courts. 

Justice Akil Kureshi. Photo: LiveLaw

“The CJI will find it difficult to nominate him for appointment and if he does there is every possibility of his seniors questioning the decision…,” he observed.  

Justice Ahmadi was convinced that the rule of seniority and the legitimate expectation doctrine can have no relevance in determining the suitability of the appointee, who is a constitutional functionary. “The seniority principle and the legitimate expectation doctrine would only push merit to the second place,” he held.  But even he was of the view that where both the candidates under consideration are of equal merit, inter se seniority may have a role to play, subject to other requirements for maintaining representative character, etc. being satisfied. 

Justice Kuldip Singh, in his separate opinion, had held that seniority rule stagnates the system due to lack of enterprise; merit, on the other hand, does justice to the selected and brings vigour to the system. But he also agreed with Justice J.S. Verma who wrote the majority opinion, that appointments to the Supreme Court are to be made on the basis of selection on merit but in the process of selection the senior judge in the same court is entitled to be considered in preference to the junior one.

In the Third Judges case, another nine-judge bench opined in the Presidential reference case that strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority, in respect of each senior judge who has been passed over. What has to be recorded is the positive reason for the recommendation, the bench answered the President, in response to his reference seeking advisory opinion under Article 143 of the constitution. 

Also read: Fresh Appointments to SC Stalled Due to Differences on Elevating Justice Akil Kureshi

Justice Nariman, during his term as judge of the Supreme Court, revived the doctrine that manifest arbitrariness can be a ground for striking down a law. He applied the doctrine in several landmark cases, overruling decisions which were contrary to it.

Therefore, when a nine-judge bench considered legitimate expectation (of a high court judge to be elevated to a Supreme Court judge in view of his seniority) as a requirement of non-arbitrariness in decision-making by the CJI, Justice Nariman could not have gone against that explicit ruling, simply to facilitate a consensus within the Collegium. 

Absence of consensus

Put in this context, let us examine whether members of the SC Collegium other than Justice Nariman were correct in disagreeing with him on the question of elevating Justice Akil Kureshi to the Supreme Court ahead of other appointees who are junior to him. The majority judgment in the Second Judges case contemplates the non-appointment of a person recommended on the ground of unsuitability.

Justice Nariman. Credit: Youtube

Justice R.F. Nariman. Photo: Youtube

It says that such non-appointment must be for good reasons, disclosed to the CJI to enable him to reconsider and withdraw his recommendation on those considerations. The judgment even favoured the non-appointment of a person recommended by the CJI, for reasons to be recorded, in public interest, if other judges were against it. 

In Paragraph 19 of the advisory opinion  in the Third Judges case, the Supreme Court observed:

“If the majority of the collegium is against the appointment of a particular person, that person shall not be appointed…we have little doubt that if even two of the Judges forming the collegium express strong views, for good reasons, that are adverse to the appointment of a particular person, the CJI would not press for such appointment”.    

Doubtless, Justice Nariman was in a minority in the Collegium when he sought the elevation of Justice Kureshi.

Also read: Centre Has Its Way, Supreme Court Collegium Reassigns Justice Akil Kureshi

But did the majority express strong views against Justice Kureshi, for good reasons, that were adverse to his appointment? One can only speculate, and Justice Nariman was probably convinced that there were neither strong views nor good reasons which militated against elevating Justice Kureshi. 

In Paragraph 20 of the advisory opinion in the Third Judges case, the Supreme Court observed:

“It may be that one or more members of the collegium that made a particular recommendation have retired or are otherwise unavailable when reasons are disclosed to the CJI for the non-appointment of that person.  In such a situation, the reasons must be placed before the remaining members of the original collegium plus another Judge or Judges who have reached the required seniority and become one of the first four puisne judges.  It is for this collegium, so re-constituted, to consider whether the recommendation should be withdrawn or reiterated.  It is only if it is unanimously  reiterated, that the appointment must be made.   Having regard to the objective of securing the best available men for the Supreme  Court, it is imperative that the number of Judges of the Supreme Court who consider the reasons for non-appointment should be as large as the number that had made the particular recommendation.”  

It is true that the previous Collegium with Justice Nariman as a member did not recommend Justice Kureshi, and therefore, the question of withdrawing or reiterating (if the Union government returned it for reconsideration) it did not arise.  

The collegium simply anticipated the consequence of recommending Justice Kureshi along with other appointees, who may be acceptable to the current dispensation at the Centre. In that case, the Centre might have faced the compulsion of delinking Justice Kureshi from the rest to accord its approval for the latter.  

Given the reservations against such delinking of the appointees unilaterally by the Union government,  the Collegium perhaps saw wisdom in doing it itself to avoid the embarrassment of being slighted by the government. 

Therefore, the scenario envisaged by the Supreme Court’s opinion in the Third Judges case would not become irrelevant simply because there was no recommendation with regard to Justice Kureshi. Although Justice Nariman might have retired on August 12, the Collegium which implicitly decided against recommending Justice Kureshi after his retirement ought to have considered the reasons for his non-appointment, in conformity with the spirit of the Supreme Court’s opinion in the Third Judges case.  

The Collegium’s opaque functioning does not help us to assume that it could have been the case.