The Bombay high court’s proposal for appointment of 18 advocates and four judicial officers as judges of the HC has run into serious problem in the Supreme Court collegium with senior SC judges red-flagging the “hasty” process of selection and the “integrity” of the candidates.
The 22 names were sent to the SC collegium during the 39-day tenure of Justice Bhushan Pradyumna Dharamdhikari as chief justice from March 20 to April 27, 2020.
The HC, the second largest after Allahabad HC, has a sanctioned strength of 94 judges but is functioning with 64 judges, including CJ Dipankar Datta.
According to procedure, the three-judge SC collegium comprising CJI S A Bobde and Justices N V Ramana and R F Nariman sought views on the 22 proposed names from Justices A M Khanwilkar, D Y Chandrachud and B R Gavai, as Bombay HC is the parent HC of all three.
Khanwilkar and Chandrachud registered their strong opposition to the manner in which the 22 names were included in the list of prospective candidates for appointment as HC judges. They gave their views on the HC proposal through separate letters, both firm on sending back all the names to the HC for reconsideration.
Justice Dharmadhikari was acting CJ of Bombay HC from February 20 till March 19 last year. He was the CJ from March 20 till his superannuation on April 27, 2020. Khanwilkar and Chandrachud said it was well nigh impossible for a chief justice to prepare a list of 22 candidates for appointment as HC judges in such a short span of time.
They said shortlisting a candidate for appointment as a judge required the HC CJ to watch the performance of advocates, consult bar leaders and colleague judges about the integrity, ability and capability of each individual. Importantly, the two senior SC judges red-flagged the proposal on a very serious note — integrity of the candidates.
Given the unprecedented nature of opposition to the entire list of names proposed by the HC, it would be difficult for the SC collegium led by CJI Bobde to overcome it and recommend the names to the Centre for their appointment as judges. Even if the collegium does so, the government would cite the consultee judges’ opposition to return the proposal to the collegium.
Khanwilkar and Chandrachud doubted the integrity of many people on the list. They said most of the recommended people were around 55 years old and appointing people of this age group would not be advisable as they would have a short tenure as HC judges, who retire at the age of 62 years. According to the two SC judges, most HC judges take at least two to three years to get acquainted with the art of writing judgments and adapting to the discipline intrinsic to the constitutional post.
The two judges said it would be in the interest of the justice delivery system to return the 22 names for reconsideration to the Bombay HC where Justice Datta has been chief justice for nearly one year. They said the selection of candidates needed to be broad-based keeping in mind the hopes and aspirations of deserving advocates practising not only in Bombay HC but before its benches in Aurangabad, Nagpur and Panaji.
However, Gavai conveyed his view approving names of deserving candidates from among the 22 names but agreed with Justices Khanwilkar and Chandrachud for returning the rest for reconsideration. Justice Gavai did not fault Justice Dharmadhikari for recommending a large number of people for appointment as HC judges. He said Justice Dharmadhikari was a judge of the HC since 2004 and had reasonable knowledge about the talent pool in the HC.