January 10, 2019:
The Supreme Court collegium’s claims of transparency is soon set to face a critical test.
The collegium will have to take a call on appointing Vishal Mishra as a judge of the Madhya Pradesh High Court.
Vishal Mishra happens to be the younger brother of Supreme Court judge Arun Mishra, who is a member of the larger five-judge Supreme Court collegium which decides on appointments to the apex court.
Though the appointments to High Courts are decided by a smaller, three-member collegium.
Arun Mishra won’t be in the room when his brother’s name is discussed.
But according to existing procedure, he will be asked to give his views on all the names recommended by the High Court collegium, because the MP High Court is his parent High Court.
There is a chance that the SC collegium will reject the younger Mishra’s name since he was below the mandatory age of 45 when he was recommended by the MP High Court collegium in Sept 2018.
It is understood that the Central Govt. has conveyed its views to the Chief Justice of India on the issue of Vishal Mishra not fulfilling the age criteria.
Arun Mishra was himself the subject of much speculation last year when four senior Supreme Court judges held their unprecedented press conference against then-Chief Justice of India Dipak Misra. One of the main issues the four judges raised was that Dipak Misra was “selectively assigning” cases to benches not including the most senior judges.
Although the four judges did not name him, it was common knowledge in legal circles that Dipak Misra had passed on several of these cases to his ‘friend’ Arun Mishra.
Arun Mishra’s father H.G. Mishra was also a judge of the Madhya Pradesh high court.
Question of transparency
The Modi Govt. has been insisting that the collegium system should be more transparent in its functioning and take steps to put an end to the system of kin of judges being given preferential treatment while appointing judges.
One reason the BJP-led NDA government pushed the NJAC Act, which received near-unanimous support in Parliament — only BJP rebel and senior advocate Ram Jethmalani refused to support it — was because the collegium was seen as promoting the ‘uncle judge syndrome’, with kin and juniors of serving and retired judges being appointed judge, overlooking claims of better-suited lawyers.
In recent years, the Supreme Court collegium has rejected several names recommended by High Court collegiums that didn’t fulfill the age criteria following the norm laid down in the Memorandum of Procedure (MoP) which guides appointments to higher judiciary.
According to the MoP, the min. age for the appointment of a lawyer as a High Court judge is fixed at 45 yrs while the max. is 55.
For elevation of district court and sessions judges to the High Court bench, the MoP has fixed the maximum age at 58-and-a-half years.
The age clause was introduced on the insistence of the Narendra Modi government after the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act.
The Govt’s view was that the age criteria would go a long way in ensuring uniformity and transparency in the process of appointments in the high courts, since it would check misuse of the unaccounted discretion by members of the collegium while clearing names.