Supreme Court: Collegium Decisions on Judge Selection Beyond RTI, Judicial Scrutiny

Supreme Court on Monday emphatically said the selection of judges of Constitutional courts by the high court and Supreme Court collegiums is beyond the pale of judicial scrutiny and does not come under the ambit of Right to Information (RTI) Act.

A partial working day bench of Justices B V Nagarathna and Joymalya Bagchi declined to entertain a writ petition by senior Himachal judicial officer Arvind Malhotra, who alleged the HC collegium failed to comply with an SC order mandating consideration of his candidature for elevation to HC.

"We do not want to open a Pandora's box. We will not interfere in the collegium decisions," the bench said, indicating hundreds of candidates are called for interaction prior to selecting a few and recommending their names.

Arvind Malhotra's counsel Balbir Singh said SC, in its Sept 6, 2024 judgment, had disapproved Himachal HC CJ's unilateral decision to ignore candidature of two senior judicial officers, including Malhotra, and had said selection has to be done collectively by the collegium and not individually by the CJI.

Singh said the collegium did not consider Malhotra's candidature and responses.

The bench said the collegium's decision is based on its subjective satisfaction and neither HC nor SC can fault it by taking up petitions and issuing directions (on recommending one candidate or the other).

"The issue of selection of candidates for appointment of judges to constitutional courts is neither amenable to judicial scrutiny nor comes under the ambit of RTI Act."

When Malhotra complained judicial officers who were junior to him had been recommended for elevation, the bench said, "It is a question of suitability as assessed by the collegium. Recommending a junior officer does not give a cause of action to a person to challenge the recommendations through a writ petition. Merely because of seniority, one is not entitled to elevation."

On June 2, the SC collegium, after considering the HP HC collegium recommendations and interacting with recommended persons, had approved appointment of three judicial officers - Chirag Bhanu Singh, Bhupesh Sharma and Yogesh Jaswal - as judges of HC.

Justices Nagarathna and Bagchi said the best it can do is give liberty to Malhotra to represent to HC to expeditiously complete the pending inquiry process.

It also had a word of advice for Malhotra: "You are young and should wait."

The bench said the HC collegium recommendation has been approved by the SC collegium after considering all material provided by HC and govt, which leaves no scope for interference in it by SC on the judicial side.

"Once the SC collegium approves it, we cannot enter into a debate on its correctness on the judicial side," the bench said.

In its order, the bench disposed of the petition after giving liberty to Malhotra "to seek remedies".