Above: Justice VG Arun taking the oath of office in the Kerala High Court/Photo: SNS

Exhibiting its resolve to appoint an advocate it had proposed last October to the Union Ministry of Law and Justice as judge of the Kerala HC, the SC Collegium reiterated its recommendations on February 12 

BY NV Ravindranathan Nair in Thiruvananthapuram

It was way back on March 7, 2018, that the Kerala High Court Collegium proposed the names of seven advocates, including PV Kunhikrishnan, for appointment as judges in the Kerala High Court. On October 9, the Supreme Court Collegium approved five names for elevation. Among them was advocate Kunhikrishnan. However, the Department of Justice referred his file back to the Chief Justice of India (CJI) for reconsideration.

Since then, the Kunhikrishnan file has been moving back and forth and on February 12, the apex court Collegium comprising Chief Justice Ranjan Gogoi and Justices AK Sikri and SA Bobde met and “carefully scrutinised the material placed on record, including the reasons recorded in the file for seeking reconsideration of the proposal” as regards Kunhikrishnan, and concluded that “the Collegium while clearing his name on October 9, 2018 has already considered material on the basis of which the proposal has been referred back for reconsideration” and resolved to reiterate the October 9 recommendation on Kunhikrishnan.

In the latest round of recommendations, the SC Collegium had recommended the appointment of three High Court advocates and two district judges for elevation as High Court judges.

The Collegium had considered the panel of seven candidates and cleared the names of VG Arun and N Nagesh who were functioning as assistant solicitor generals at the High Court and PV Kunhikrishnan.

In the category of judicial officers, TV Anilkumar and N Anilkumar, both of whom had entered judicial service in 1991 and were serving as registrar generals of the High Court, were recommended.

Kunhikrishnan had enrolled at the bar in 1989 and has been practising for 24 years in the high court, the Collegium noted. The SC Collegium wants his proposal processed expeditiously.

In the case of a few others, the Collegium had noted that in order to ascertain their suitability for elevation to the High Court, it had consulted their colleagues conversant with the affairs of the Kerala High Court.

The centre, while referring back the recommendations, had pointed out that some of the lawyers had failed to meet the income criteria, a clear indication that they lacked sufficient professional experience or practice as successful advocates to get picked from the Bar for elevation as High Court judge.

In August 2018, the state government had also resubmitted the Kerala High Court Collegium’s recommendations without making any change in the nominations. This led to raised eyebrows in the Kerala High Court Bar and indeed even among the general public as doubts crept in about the criteria adopted for the selection of advocates to be elevated as High Court judges.

“There was conspicuous absence of applying the judicial mind in the selection of nominees. There were glaring instances of nepotism which undoubtedly had caught the attention of the Centre prompting it to refer the list back,” a senior lawyer in the High Court told India Legal on condition of anonymity.

There have been complaints in the legal fraternity that one of the members of the Collegium had personally intervened to make sure that a certain advocate’s name was included in the list of nominees.

The fact that those judges who are willing to toe the line of the government will get plum posts in commissions and other quasi-judicial bodies post-retirement has also been influencing the judges. The casualty in the process is quality, impartiality and high integrity expected of a judicial officer, a senior lawyer pointed out, preferring anonymity.

One of the interesting facts that came to light was that when the Supreme Court Collegium considered the advocates for elevation, the income criteria was found to be inconsistent. In one case, one of the HC Collegium members reportedly endorsed the claim made by an advocate about his income. The SC Collegium stepped in to say that it was the IT department’s job to ascertain the income of the advocate.

It may be noted that out of the seven nominees recommended by the Collegium led by former Kerala High Court Chief Justice Antony Dominic, four had failed the stipulated income criterion as prescribed by the Union Ministry for Law and Justice.

When the file was sent to the state government, it promptly intimated the matter to the Kerala Chief Justice. But instead of revisiting the proposal, Dominic sent the same set of seven names back to the chief minister on March 20 and—believe it or not—with a fresh set of income certificates produced by the same lawyers who had earlier failed to meet the stipulated criterion.

According to the memorandum of procedure for appointment of chief justices and judges of high courts framed by the apex court, the candidates should have a minimum average professional income of Rs 7 lakh annually in the preceding five years for being considered for elevation as judges of a high court.

While three lawyers produced fresh income certificates, they did not cite any explanations for failing to meet the criteria the first time around.

Only one among them said that the certificate he had originally produced did not take into account his share of profit from a partnership firm, M/S United Maritime Law Chambers, where he has been a partner since 2013-14.

There were reports that the centre, while referring back the nominations, had raised allegations of moral turpitude against one of the lawyers on the list. But the state government came to his rescue, citing that there was no evidence to support the allegation and hence it could be ignored.

“A mere inquiry about the names cropping up in the nomination for appointment of judges will make one convinced that a majority of the nominees had very little professional standing or ability to command respect from the colleagues on account of their professional track record,” says a senior lawyer on condition of anonymity.

The sanctioned strength of the Kerala High Court now stands at 47.

On November 1, the president of India’s office notified the appointments of VG Arun, N Nagesh, TV Anilkumar and N Anilkumar, and all were sworn in four days later.

The presidential notification for the appointment of Kunhikrishnan is still awaited.