Controversy over Justice R.M. Lodha's Appointment as Supreme Court Judge

Patna High Court Chief Justice R.M. Lodha's Appointment to the Supreme Court is being contested by the Union Law Ministry

Union Government's decision to suggest a rethink on the move by Chief Justice of India (CJI)to propose the names of A K Ganguly, Chief Justice of Madras High Court, R M Lodha, Chief Justice of Patna High Court, and H L Dattu, Chief Justice of Kerala High Court, for elevation to the apex court has created a stalemate.

An advocate has moved the Supreme Court for a declaration that the President is bound to issue warrants of appointments to the three judges, recommended by the collegium headed by Chief Justice of India (CJI) K.G. Balakrishnan.

In his writ petition, R. K. Kapoor said that as per the various apex court judgments the recommendations of the judiciary on appointment of judges were binding on the executive. If the executive sat on the matter or delayed the appointment, the apex court could issue appropriate directions for performance of those functions in the public interest.

“If there is a deadlock between the judiciary and the executive on the issue of appointment of judges to the apex court, as a result of which the vacancies continue [and] arrears of cases go on piling up, the deadlock has to be broken by the judiciary itself by issuing appropriate directions.”

Controversy

The petitioner said he was concerned at the controversy over the elevation of the Chief Justices of the Kerala, Madras and Patna High Courts, H.L. Dattu, A K Ganguli and R.M. Lodha, to the Supreme Court, with the government sending back the files to the CJI and the collegium reiterating its earlier recommendations.

The petitioner cited the apex court ruling in the SC Advocates on Record Association vs. UOI case, in which a nine-member Constitution Bench accorded primacy to the collegium in judicial appointments saying “The opinion of the CJI, forwarded in the manner prescribed, shall be primal. No appointment can be made by the President under Articles 124(2) and 217(1) unless it is in conformity with the opinion of the CJI.”

On the government claim that seniority of some High Court Chief Justices was overlooked, the petitioner quoted the Constitution Bench’s observation: “The appointment to the Supreme Court shall be by ‘selection on merit.’ Inter se seniority amongst judges in their respective High Courts has to be kept in view while considering the judges for elevation to the Supreme Court.”

Kapoor said: “In view of the several judicial pronouncements, the Centre cannot withhold the files containing the collegium’s proposal on elevation of the three High Court Chief Justices.”

Justice Lodha had assumed office of Chief Justice, Patna High Court on 13th of May 2008.

The Supreme Court on November 21 declined to give an urgent hearing to a petition seeking direction to the government to go by the advice of a panel headed by the CJI on the issue of appointment of apex court judges. When the petition was mentioned, a Bench headed by Chief Justice K G Balakrishnan, showed its disinterest in hearing the matter on an urgent basis.

The Bench also questioned the advocate for his submission that the government was sitting on the file cleared by the collegium, a panel of five judges, for the elevation of three Chief Justices of High Courts to the apex court.

"Who is sitting over the file," the Bench wanted to know from the advocate who filed the petition.

Realising that the court was not inclined to hear the matter, advocate R K Kapoor who has filed the petition said he will wait for the matter to be heard in the routine course on January 5, 2009.

The petition filed by the advocate has contended that the President was bound to go by the advice of the CJI-headed collegium on appointment of apex court judges. Quoting the Constitution and judicial pronouncements, the advocate has maintained that the Supreme Court's collegium, a panel of judges headed by the CJI, has the final say on elevation of High Court chief justices' elevation to the top court and not the PMO or any other executive authority.

The government had sent back the file on the elevation proposal to the collegium for a rethink on the ground that three other senior HC Chief Justices — A P Shah (Delhi High Court), A K Patnaik (Madhya Pradesh) and V K Gupta (Uttarkhand) — had been overlooked in the process.