The Telegraph
Thursday , May 15 , 2014
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Mishra set to be fourth-time lucky

New Delhi, May 14: Calcutta High Court Chief Justice Arun Kumar Mishra figures among four persons, including two eminent lawyers, recommended for elevation to the Supreme Court.

Generally, chief justices of high courts or their senior-most judges are considered for elevation to the Supreme Court by the apex court collegium. Only three senior advocates have been directly elevated to the top court so far.

Justice Mishra, 58, was unlucky not to have been elevated during the tenures of three former Chief Justices of India — S.H. Kapadia, Altamas Kabir and P. Sathasivam — although his name was considered.

Apart from him, the names of Orissa High Court Chief Justice, Adarsh Kumar Goel, and eminent lawyers Rohinton F. Nariman and Gopal Subramanium have been recommended by the collegium headed by the Chief Justice of India, R.M. Lodha, to the government.

Of significance is the direct elevation of Nariman and Subramanium who are practising in the Supreme Court. Both have held the post of solicitor-general of India in the outgoing UPA government but quit because of differences with the political establishment.

The names of Nariman and Subramanium have been doing the rounds since 2011. They were considered by earlier collegiums headed by the former CJIs, K.G. Balakrishnan, Kapadia, Kabir and Sathasivam.

However, their names were not finally approved as there was a feeling that their relatively young age would affect the chances of more senior judges becoming the CJI.

Normally, high court chief justices and judges past 60 or 61 are elevated to the apex court. The retirement age is 65 years. But Subramanium is just 56 and may eventually become CJI in October 2022.

Nariman is 58 but he would have an almost seven-year stint as a judge unlike others who retire within 2-3 years of elevation to the apex court.

“It was long overdue. They are brilliant lawyers and they will only enhance the image of the institution. The collegium has taken the right decision,” Justice G.S. Singhvi, who passed the judgment cancelling 122 2G licences, told The Telegraph.

Contacted by this newspaper, Nariman said: “I am very happy that I will be able to serve the country.”

Sources close to Subramanium, who is in Chennai, said he had given consent for his elevation and was “happy with the faith reposed in him” by the Supreme Court.

Informed sources said since a new government is due to assume office, the present dispensation may not take any decision on the recommendations.

However, the nod of the government — irrespective of ideological mooring — is secondary as its reservations, if any, are not binding on the collegium, whose decision alone is final.

The collegium decided to recommend the names last week as eight judges, including CJI Lodha, are due to retire this year. Although the sanctioned strength of the apex court is 31, the present strength is 28.

Sources said the CJI might recommend more names before he retires so that there are at least 28 judges in the top court at any point of time.

Activist and lawyer Prashant Bhushan welcomed the recommendation to elevate the two senior lawyers but said the top court must have a more transparent manner of appointing judges in the high courts and the apex court.

“I know these two names are very good. But I do feel the selection of judges has to be entrusted to a full-time body. Such a body should do the selection by calling for nominations and consider people for the post.

“They should first prepare a shortlist of the candidates and put them in the public domain. Thereafter, there can be debate, opinions and suggestions. Only after that the selections should be made,” Bhushan said.

He, however, clarified he had no objections to the two senior advocates.

The first person to be directly elevated to the Supreme Court from the Bar was Justice S.M. Sikri. That was in 1963. In the nineties, Justices N. Santosh Hegde and Kuldip Singh were directly elevated.

Justice Mishra, who hails from Madhya Pradesh, was appointed to Madhya Pradesh High Court in October 1999. He was transferred to Rajasthan High Court in September 2010, where he became its chief justice.

Justice Goel, 60, was a practising lawyer in the Supreme Court before he was appointed a judge in Punjab and Haryana High Court. He became its acting chief justice in May 2011. He was then transferred to Gauhati High Court and appointed its chief justice in December 2011. He was shifted to Orissa High Court in October 2013.

Sahara judge

A judge of the two-member bench that recently upheld Sahara boss Subrata Roy’s detention has reportedly recused from the case.

It is learnt that the judge has written to CJI Lodha, seeking his permission to pull out. Neither Lodha nor the judge could be reached for comment.

The apex court had on March 3 sent Roy to indefinite judicial custody in Tihar jail for failing to refund investors’ money to the tune of Rs 20,000 crore.