Holding

The High Court Collegium must consider elevation collectively; the Chief Justice cannot individually reconsider, and the writ petition is maintainable.

Summary

Two senior District and Sessions Judges of Himachal Pradesh filed a writ petition under Article 32 challenging the High Court Collegium's failure to reconsider their names for elevation, despite a Supreme Court Collegium resolution directing such reconsideration. They alleged that the High Court Chief Justice acted alone, without the required collective consultation of the Collegium, and that junior judges were recommended instead, violating principles of eligibility and effective consultation. The Supreme Court examined whether the petition was maintainable and whether the High Court Chief Justice could individually reconsider recommendations. Relying on the Second and Third Judges cases, the Court held that lack of effective consultation is reviewable, while suitability is non‑justiciable, and that judicial appointments must involve a collective Collegium decision. Consequently, the petition was deemed maintainable and the Chief Justice was found unable to act unilaterally; the High Court Collegium must reconsider the petitioners' names collectively. The writ petition was allowed, directing the High Court Collegium to revisit the elevation of the two petitioners.

Issues considered

Whether the writ petition is maintainable?
Whether elevation for judgeship in the High Court must be considered collectively by the High Court Collegium or can be reconsidered individually by the Chief Justice?

Legislation cited

Constitution of Indias. Article 217(1), s. Article 217(2)

Subjects

Appointment of judgesJudicial ReviewElevation as Judges of the High CourtHigh Court CollegiumCollegium systemDirections of reconsideration given by the Collegium of the Supreme CourtElevation for judgeship in the High CourtAbsence of consultation amongst the members of the CollegiumLack of effective consultationChief Justice of a High CourtJudicial appointmentsRecommendation by Supreme Court Collegium for reconsiderationSecond Judges caseThird Judges caseEligibilitySuitabilityTransparencyFairnessAccountabilityConfidentialitySensitive information

Judgment

[2024] 9 S.C.R. 150 : 2024 INSC 660

Chirag Bhanu Singh & Anr.
v.
High Court of Himachal Pradesh & Ors.
(Writ Petition (C) No. 312 of 2024)
06 September 2024
[Hrishikesh Roy* and Prashant Kumar Mishra, JJ.]

Issue for Consideration
Writ petition filed by two seniormost District and Sessions Judges in
the State of Himachal Pradesh aggrieved with the non-consideration
of their names by the High Court Collegium for elevation as
Judges of the High Court and recommendation of names of two
officers junior to them for elevation, in ignorance of the directions
of reconsideration given by the Collegium of the Supreme Court.
Whether the present writ petition is maintainable; whether elevation
for judgeship in the High Court has to be considered collectively
by the High Court Collegium or whether the Chief Justice acting
individually can reconsider the same.

Headnotes†
Judiciary – Higher Judiciary – Appointment of Judges of High
Court – Judicial Review – Absence of consultation amongst
the members of the Collegium – Recommendation by the
Supreme Court Collegium for reconsideration of the names of
the two petitioners for elevation as Judges of the High Court –
Whether the reconsideration of the proposal for the elevation
of the petitioners was jointly made by the Collegium members
of the High Court, following the Supreme Court Resolution
dated 04.01.2024 – Maintainability of the present writ petition:
Held: The writ petition is maintainable as it questions the lack
of effective consultation – The Chief Justice of a High Court
cannot individually reconsider a recommendation and it can
only be done by the High Court Collegium acting collectively –
The process of judicial appointments to a superior court is not
the prerogative of a single individual – It is a collaborative and
participatory process involving all Collegium members and must
reflect the collective wisdom that draws from diverse perspectives

* Author
[2024] 9 S.C.R. 151

Chirag Bhanu Singh & Anr. v.
High Court of Himachal Pradesh & Ors.

and ensures that principles of transparency and accountability
are maintained – The recommendation by the Supreme Court
Collegium for reconsideration is not expected to be addressed
individually to all the members of the High Court Collegium –
Such communications are naturally addressed to the Chief Justice
of the concerned High Court however, the letter addressed to
the Chief Justice will not enable the Chief Justice to act without
participation by the other two Collegium members – In the present
case, there was no collective consultation and deliberations
amongst the members of the High Court Collegium, the three
Constitutional functionaries of the High Court i.e. the Chief Justice
and the two senior-most companion judges – The procedure
adopted in the matter of reconsideration of the two petitioners
is inconsistent with the law laid down in the Second Judges and
the Third Judges case – The decision of the Chief Justice of the
High Court on the suitability of the two petitioners as conveyed
in his letter dated 06.03.2024 is an individual decision and
therefore, vitiated – High Court Collegium to reconsider the
names of the two petitioners for elevation as Judges of the High
Court following the Supreme Court Collegium decision dated
04.01.2024 and the Law Minister’s letter dated 16.01.2024.
[Paras 18, 25, 27, 30-32]
Constitution of India – Article 217 (1), (2) – Appointment of
judges of High Court – Judicial Review – Scope – ‘Lack of
effective consultation’; ‘eligibility’; ‘suitability’:
Held: ‘Lack of effective consultation’ and ‘eligibility’ falls within the
scope of judicial review whereas ‘suitability’ is non-justiciable and
resultingly, the ‘content of consultation’ falls beyond the scope of
judicial review. [Para 15]
Judiciary – Higher Judiciary – Appointment of judges of High
Court – Confidentiality – Protection of sensitive informations:
Held: There is a need to protect certain sensitive information in
matters involving appointment of judges – While transparency
is necessary to ensure fairness and accountability, it must be
carefully balanced with the need to maintain confidentiality –
Disclosing sensitive information would compromise not only the
privacy of the individual but also the integrity of the process.
[Para 29]
152 [2024] 9 S.C.R.

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Judiciary – Higher Judiciary – Appointment of Judges of High
Court – Process of appointment of judges – Departure in the
process, pre and post-1990 after emergence of the Collegium
system – Discussed.

Case Law Cited
Mahesh Chandra Gupta v. Union of India [2009] 10 SCR 921 :
(2009) 8 SCC 273; M. Manohar Reddy v. Union of India
[2013] 1 SCR 711 : (2013) 3 SCC 99; Anna Mathews v. Supreme
Court of India [2023] 1 SCR 463 : (2023) 5 SCC 661; Supreme
Court Advocates-on-Record Assn. v. Union of India [1993] Supp.
2 SCR 659 : (1993) 4 SCC 441; Registrar General, Madras High
Court v. R. Gandhi [2014] 4 SCR 77 : (2014) 11 SCC 547; Common
Cause v. Union of India [2017] 11 SCR 154 : (2018) 12 SCC 377;
Special Reference No. 1 of 1998, Re [1998] Supp. 2 SCR 400 :
(1998) 7 SCC 739 – referred to.

Books and Periodicals Cited
Abhinav Chandrachud, ‘The Fictional Concurrence of the Chief
Justice’ in Supreme Whispers, Conversations with Judges of the
Supreme Court 1980-1989 (OUP 2018) 162-166; Law Commission
of India, ‘The Method of Appointment of Judges’ (80th Report,
August 1979) – referred to.

List of Acts
Constitution of India.

List of Keywords
Appointment of judges; Judicial Review; Elevation as Judges of the
High Court; High Court Collegium; Collegium system; Directions
of reconsideration given by the Collegium of the Supreme Court;
Elevation for judgeship in the High Court; Absence of consultation
amongst the members of the Collegium; Lack of effective consultation;
Chief Justice of a High Court; Judicial appointments; Recommendation
by Supreme Court Collegium for reconsideration; Second Judges
case; Third Judges case; ‘Eligibility’; ‘Suitability’; Transparency;
Fairness; Accountability; Confidentiality; Sensitive information.

Case Arising From
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 312 of 2024
(Under Article 32 of The Constitution of India)
[2024] 9 S.C.R. 153

Chirag Bhanu Singh & Anr. v.
High Court of Himachal Pradesh & Ors.

Appearances for Parties
Arvind P. Datar, Sr. Adv., Ms. Bina Madhavan, S. Udaya Kumar Sagar,
Ms. Shreyasi Kunwar, Ms. Shubhangi Arora, Ms. Niharika Tanneru,
M/s. Lawyer S Knit & Co., Advs. for the Petitioners.
S. Muralidhar, Sr. Adv., K. Parameshwar, Ms. Kanti, Shreenivas
Patil, Ms. Chitransha Singh Sikarwar, Ms. Raji Gururaj, Advs. for
the Respondents.
Judgment / Order of the Supreme Court
Judgment
Hrishikesh Roy, J.
1. Heard Mr. Arvind P. Datar, the learned Senior Counsel appearing
for the writ petitioners. The High Court of Himachal Pradesh is
represented by Dr. S. Muralidhar, the learned Senior Counsel.
2. This writ petition under Article 32 of the Constitution of India has
been filed by the two seniormost District and Sessions Judges
serving in the State of Himachal Pradesh. The prayer in the writ
petition reads thus:
"(a) Issue writ/writs including a writ in the nature of
certiorari calling for the minutes of meeting of the
collegium of the Hon’ble High Court of Himachal
Pradesh whereby names of officers junior to the
present petitioners have been recommended for
elevation as Judges of the Hon’ble High Court ignoring
the directions of reconsideration given by the Hon’ble
Collegium of Hon’ble Supreme Court of India.
(b) Issue writ/writs, order or direction, writ being in the
nature of mandamus, directing the Respondent No. 1
to consider the names of the Petitioners as directed
by the Hon’ble Collegium of the Hon’ble Supreme
Court of India vide Resolution dated 4.1.2024..”
FACTS
3. The petitioners i.e. Chirag Bhanu Singh and Arvind Malhotra were
recommended by the then Collegium of the High Court on 6th
December 2022 for elevation as judges of the Himachal Pradesh
High Court. On 12th July 2023, the Supreme Court Collegium,
154 [2024] 9 S.C.R.

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however, deferred their consideration. Thereafter, on 4th January,
2024, the Supreme Court Collegium in its wisdom resolved that the
proposal for the elevation of both be remitted for reconsideration to
the Chief Justice of the Himachal Pradesh High Court. In the letter
dated 16th January, 2024, addressed by the Minister for Law and
Justice to the Chief Justice of the Himachal Pradesh, in reference to
the Supreme Court Collegium Resolution dated 4th January, 2024, a
request was made that fresh recommendations be sent for the two
officers against the available service quota vacancies in the Himachal
Pradesh High Court.
4. The grievance of the writ petitioners is that the High Court Collegium
without first reconsidering the two petitioners in terms of the Supreme
Court Collegium Resolution dated 4th January, 2024 as communicated
in the Law Minister’s letter dated 16th January, 2024 had recommended
two other judicial officers for elevation. The argument is that if the
latter recommended persons are considered for appointment ahead
of the two petitioners, it would amount to ignoring their seniority and
long-standing unblemished service.
5. On 13th May, 2024, adverting to the contentions raised, this Court
issued notice only to the Registrar General of the Himachal Pradesh
High Court with the following order:
"1. Heard Mr. Arvind Datar, learned senior counsel
appearing for the petitioners.
2. The counsel would submit that the two petitioners are
the senior most judicial officers serving in the State of
Himachal Pradesh. Their names were recommended
for elevation to High Court Judgeship in December,
2022. The Supreme Court Collegium on 12.07.2023
however resolved to defer consideration for the two
petitioners for the present with the observation that it
will be taken up by the Collegium at an appropriate
stage. The senior counsel then submits that the
persons who were recommended in December, 2022
along with the petitioners have since been appointed
as Judges of the High Court on 28.07.2023.
3. The Supreme Court thereafter on 04.01.2024
resolved that the proposal for elevation of the
two petitioners be remitted to the Chief Justice
[2024] 9 S.C.R. 155

Chirag Bhanu Singh & Anr. v.
High Court of Himachal Pradesh & Ors.

of the Himachal Pradesh High Court for fresh
recommendation by the High Court. This decision
is reflected in the communication dated 16.01.2024
addressed by the Minister for Law and Justice to the
Chief Justice of the Himachal Pradesh High Court
where request is made that fresh recommendations
be sent for the two officers i.e., Chirag Bhanu Singh
and Arvind Malhotra against the unfilled vacancies
from service quota in the Himachal Pradesh High
Court.
4. Projecting the grievances of the petitioners, Mr. Datar
would submit that the Himachal Pradesh High Court
Collegium on 23.04.2024 has recommended the
names of two other Judicial Officers for elevation
as High Court Judges without first acting on the
recommendations of the Supreme Court Collegium
and the 16.01.2024 letter of the Law Minister, for
reconsideration of the two petitioners. Since both
petitioners are the senior most judicial officers,
Mr. Datar contends that if recently recommended
judicial officers are considered for elevation, it will
cause serious prejudice to the expectations of the
petitioners who have unblemished service record as
Judicial Officers.
5. Issue notice only to the Registrar General of the
Himachal Pradesh High Court so that appropriate
information can be obtained on whether the High
Court Collegium had reconsidered the cases of
the two petitioners, pursuant to the Supreme Court
Resolution dated 04.01.2024 and the Law Minister’s
Communication dated 16.01.2024.”
6. Following the above notice, a Report in sealed cover was filed by
the Registrar General of the Himachal Pradesh High Court. The
Report was perused and was also furnished to the learned Counsel
for the writ Petitioners.
7. The Report of the Registrar General, reflected that the Resolution
of the Supreme Court Collegium (dated 4th January, 2024) was
never received by the Chief Justice of the High Court. It was further
156 [2024] 9 S.C.R.

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stated that the Chief Justice of the High Court had written to the
Chief Justice of India on 11th December 2023 seeking guidance
on whether the Collegium of the Supreme Court needed further
inputs about the suitability of the two officers for elevation as
High Court judges. On 6th March 2024, the Chief Justice of the
High Court individually addressed a letter to the Supreme Court
Collegium on the suitability of the petitioners. This is projected
to be in full compliance of the resolution dated 4th January, 2024
of the Supreme Court Collegium. The report also notes that a
representation was made by one of the Petitioners to the Chief
Justice of India against non-consideration for elevation. This letter,
it is alleged was contemptuous.
8. When the present matter was next heard on 23rd July, 2024, this
Court called for the Supreme Court Resolution dated 4th January,
2024 as the parties wanted to be sure of the same, to make further
submissions. A copy of the Supreme Court resolution was then
produced before this Court and was allowed to be perused by the
respective counsel for the parties.
SUBMISSIONS
9.1. Mr. Datar, the learned Senior Counsel projected that the two
petitioners were direct recruits and the seniormost district judges
in the State of Himachal Pradesh. Over the last two decades,
both have had a blemish-free record and all their 17 ACRs have
either been ‘Outstanding’ or ‘Excellent’. It was then submitted that
as the two seniormost judges, they have a constitutional right for
reconsideration of their names. Referring to paragraph-10 of the
Registrar General’s Report, the senior counsel argues that the issue
of elevation has to be collectively considered by the High Court
Collegium and not by the Chief Justice acting alone. As regards
the letter written by one of the judicial officers to the Chief Justice
of India, it was submitted that it only highlights his judicial journey
and the anguish for not being considered for elevation despite 17
years of exemplary service. According to Mr. Datar, the letter does
not contain any insinuation against members of the Supreme Court
Collegium and is not contemptuous or disrespectful or in bad taste
as is alleged in the Report of the Registrar General.
9.2. On maintainability, it was submitted that the present writ petition is
limited to ‘lack of effective consultation’ and hence is maintainable.
[2024] 9 S.C.R. 157

Chirag Bhanu Singh & Anr. v.
High Court of Himachal Pradesh & Ors.

Reliance has been placed on the decisions of this Court in Mahesh
Chandra Gupta v. Union of India1 (for short “Mahesh Chandra
Gupta”), where it was held that the issues of ‘eligibility’ and ‘effective
consultation’ would be within the realm of judicial review. This was
followed in M. Manohar Reddy v. Union of India 2 and reiterated
recently in Anna Mathews v. Supreme Court of India 3 where it was
held that judicial review is restricted to ‘eligibility’ and not ‘suitability’ or
‘content of consultation’. It was also submitted that the consideration
by the Collegium collectively is an in-built check against the likelihood
of arbitrariness or bias.
9.3. On the other hand, Dr. S. Muralidhar, Learned Senior Counsel
appearing for the High Court of Himachal Pradesh argued that the
present writ petition is not maintainable. The prayer for reconsideration
is, in effect, a request for judicial review over the ‘suitability’ of the
candidates. To highlight the limited scope of judicial review, reliance
has been placed on the decisions of this Court in Supreme Court
Advocates-on-Record Assn. v. Union of India 4 (for short “Second
Judges case”), Mahesh Chandra Gupta (supra), 5 M. Manohar
Reddy v. Union of India,6 Registrar General, Madras High Court v.
R. Gandhi,7 Common Cause v. Union of India 8 and Anna Mathews
v. Supreme Court of India.9
9.4. As regards the Chief Justice of the High Court individually taking
a decision and addressing the letter to the Chief Justice of India,
it was argued by Dr. Muralidhar that the resolution of the Supreme
Court Collegium (4.01.2024) did not specify that the reconsideration
of the petitioners’ names was to be in consultation with the other
members of the High Court Collegium. Therefore, the High Court
Chief Justice according to the learned counsel, could have made
the reconsideration all by himself.

1 [2009] 10 SCR 921 : (2009) 8 SCC 273
2 [2013] 1 SCR 711 : (2013) 3 SCC 99
3 [2023] 1 SCR 463 : (2023) 5 SCC 661
4 [1993] Supp. 2 SCR 659 : (1993) 4 SCC 441 (Para 482)
5 Para 39-41, 43-44 and 71, 74
6 [2013] 1 SCR 711 : (2013) 3 SCC 99 (Para 17-20)
7 [2014] 4 SCR 77 : (2014) 11 SCC 547 (Para 25-26)
8 [2017] 11 SCR 154 : (2018) 12 SCC 377 (Para 17)
9 [2023] 1 SCR 463 : (2023) 5 SCC 661 (Para 10)
158 [2024] 9 S.C.R.

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ISSUES
10. Going by the above submissions, the following questions arise for
our consideration:
A) Whether the writ petition is maintainable?
B) Whether elevation for judgeship in the High Court has to be
considered collectively by the High Court Collegium or whether
the Chief Justice acting individually can reconsider the same?
Issue A
11. At the outset, it is apposite to address the issue of maintainability
of the writ petition and the limited scope of judicial review in such
matters. This aspect was addressed by a nine-judge bench of this
Court in Supreme Court Advocates-on-Record Association. v. Union
of India10 (for short “Second Judges case”). It was observed therein
that the scope of judicial review in appointment of judges is limited as
it introduces the ‘judicial element’ in the process and further judicial
review is not warranted apart from some exceptions such as want
of consultation amongst the named constitutional functionaries. In
this regard, the following passage from the Second Judges case
(supra) bears consideration:
“482. This is also in accord with the public interest of
excluding these appointments and transfers from litigative
debate, to avoid any erosion in the credibility of the
decisions, and to ensure a free and frank expression
of honest opinion by all the constitutional functionaries,
which is essential for effective consultation and for taking
the right decision. The growing tendency of needless
intrusion by strangers and busybodies in the functioning
of the judiciary under the garb of public interest litigation,
in spite of the caution in S.P. Gupta [1981 Supp SCC :
(1982) 2 SCR 365] while expanding the concept of locus
standi, was adverted to recently by a Constitution Bench in
Krishna Swami v. Union of India [(1992) 4 SCC 605]. It is,
therefore, necessary to spell out clearly the limited scope
of judicial review in such matters, to avoid similar situations

10 [1993] Supp. 2 SCR 659 : (1993) 4 SCC 441
[2024] 9 S.C.R. 159

Chirag Bhanu Singh & Anr. v.
High Court of Himachal Pradesh & Ors.

in future. Except on the ground of want of consultation
with the named constitutional functionaries or lack of any
condition of eligibility in the case of an appointment, or
of a transfer being made without the recommendation of
the Chief Justice of India, these matters are not justiciable
on any other ground, including that of bias, which in any
case is excluded by the element of plurality in the process
of decision-making.”
[emphasis supplied]
12. Thereafter in Special Reference No. 1 of 1998, Re11 (for short “Third
Judges case”), it was noted as under:
“32. Judicial review in the case of an appointment
or a recommended appointment, to the Supreme
Court or a High Court is, therefore, available if the
recommendation concerned is not a decision of the Chief
Justice of India and his seniormost colleagues, which is
constitutionally requisite. They number four in the case of
a recommendation for appointment to the Supreme Court
and two in the case of a recommendation for appointment
to a High Court. Judicial review is also available if,
in making the decision, the views of the seniormost
Supreme Court Judge who comes from the High Court of
the proposed appointee to the Supreme Court have not
been taken into account. Similarly, if in connection with
an appointment or a recommended appointment to a High
Court, the views of the Chief Justice and senior Judges
of the High Court, as aforestated, and of Supreme Court
Judges knowledgeable about that High Court have not
been sought or considered by the Chief Justice of India
and his two seniormost puisne Judges, judicial review
is available. Judicial review is also available when the
appointee is found to lack eligibility.”
13. Subsequently, a two-judge bench speaking through S.H. Kapadia J
laid down important principles in Mahesh Chandra Gupta (supra).
This Court distinguished between ‘eligibility’ and ‘suitability’ and

11 [1998] Supp. 2 SCR 400 : (1998) 7 SCC 739
160 [2024] 9 S.C.R.

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noted that Article 217(1) of the Constitution of India pertains to the
‘suitability’ of an individual, whereas Article 217(2) concerns the
‘eligibility’ of a person to become a Judge. While ‘eligibility’ is an
objective criterion, ‘suitability’ is a subjective one. The bench further
observed that decisions regarding who should be elevated, which
primarily involve considerations of “suitability, are not subject to
judicial review. It held as under:
“44. At this stage, we may highlight the fact that there
is a vital difference between judicial review and merit
review. Consultation, as stated above, forms part of the
procedure to test the fitness of a person to be appointed
a High Court Judge under Article 217 (1). Once there is
consultation, the content of that consultation is beyond the
scope of judicial review, though lack of effective consultation
could fall within the scope of judicial review. This is the
basic ratio of the judgment of the Constitutional Bench of
this Court in Supreme Court Advocates-on-Record Assn.
[(1993) 4 SCC 441] and Special Reference No. 1 of 1998,
Re [(1998) 7 SCC 739].”
14. The above view where the Court distinguished between ‘eligibility’ and
‘suitability’ has been consistently followed12 in subsequent decisions
of this Court including in the recent decision in Anna Mathews v
Supreme Court of India13 where it was noted as under:
“10. We are clearly of the opinion that this Court, while
exercising power of judicial review cannot issue a writ of
certiorari quashing the recommendation, or mandamus
calling upon the Collegium of the Supreme Court to
reconsider its decision, as this would be contrary to the
ratio and dictum of the earlier decisions of this Court
referred to above, which are binding on us. To do so
would violate the law as declared, as it would amount to
evaluating and substituting the decision of the Collegium,
with individual or personal opinion on the suitability and
merits of the person.”

12 Manohar Reddy and Anr. v. Union of India (2013) 3 SCC 99, Registrar General, Madras High Court v. R.
Gandhi (2014) 11 SCC 547, Common Cause v. Union of India (2018) 12 SCC 377
13 [2023] 1 SCR 463 : (2023) 5 SCC 661
[2024] 9 S.C.R. 161

Chirag Bhanu Singh & Anr. v.
High Court of Himachal Pradesh & Ors.

15. The following position emerges as a result of the above:
i) ‘Lack of effective consultation’ and ‘eligibility’ falls within the
scope of judicial review.
ii) ‘Suitability’ is non-justiciable and resultingly, the ‘content of
consultation’ falls beyond the scope of judicial review.
16. The above legal position clearly suggests that the absence of
consultation amongst the members of the Collegium would be
within the limited purview of judicial review. Proceeding on this
understanding, this Court had issued notice to the Registrar
General to ascertain whether the High Court Collegium adhered
to the procedural requirement of an ‘effective consultation’ for the
reconsideration exercise. The Chief Justice of the High Court, it was
submitted had never received the Resolution of the Supreme Court
Collegium. It was therefore argued that perusing the Resolution of
the Supreme Court was essential for the respective counsel to make
their submissions. As earlier noted, a copy of the resolution (dated
4th January 2024) was produced in Court and the same was allowed
to be perused by the respective counsel for the parties.
17. The aforesaid re-consideration resolution was requisitioned only
for factual determination as to whether ‘effective consultation’ was
made, in terms of the resolution of the SC Collegium. This scrutiny
has nothing to do with the ‘merits’ or the ‘suitability’ of the officers in
question but to verify whether ‘effective consultation’ was made. Such
scrutiny is permissible within the limited scope of judicial review as
discussed before. Therefore, the present writ petition for this limited
scrutiny is found to be maintainable.
Issue B
18. The second issue that falls for our consideration is whether elevation
for judgeship in the High Court has to be considered collectively
by the Collegium of the High Court or whether the Chief Justice
acting individually can reconsider the same. The process of judicial
appointments to a superior court is not the prerogative of a single
individual. Instead, it is a collaborative and participatory process
involving all Collegium members. The underlying principle is that the
process of appointment of judges must reflect the collective wisdom
that draws from diverse perspectives. Such a process ensures that
principles of transparency and accountability are maintained.
162 [2024] 9 S.C.R.

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19. Mr. Datar, the learned Senior Counsel earnestly submitted that
the Chief Justice of a High Court individually cannot reconsider a
recommendation. To appreciate the legal basis for such a contention,
we may refer to the following judgments discussed below.
20. This Court in the Second Judges case (supra) noted as under:
“468. The rule of law envisages the area of discretion to
be the minimum, requiring only the application of known
principles or guidelines to ensure non-arbitrariness, but
to that limited extent, discretion is a pragmatic need.
Conferring discretion upon high functionaries and,
whenever feasible, introducing the element of plurality by
requiring a collective decision, are further checks against
arbitrariness. This is how idealism and pragmatism are
reconciled and integrated, to make the system workable
in a satisfactory manner.”
21. Again, in the Third Judges case (supra), it was observed that “the
element of plurality of judges in formation of the opinion of the
Chief Justice of India, effective consultation in writing and prevailing
norms to regulate the area of discretion are sufficient checks against
arbitrariness.”
22. Mr. Datar placed reliance on the following passage from the decision
in Mahesh Chandra (supra) to buttress his submission:
“73. The concept of plurality of Judges in the formation
of the opinion of the Chief Justice of India is one of
inbuilt checks against the likelihood of arbitrariness or
bias. At this stage, we reiterate that “lack of eligibility”
as also “lack of effective consultation” would certainly
fall in the realm of judicial review. However, when we
are earmarking a joint venture process as a participatory
consultative process, the primary aim of which is to reach
an agreed decision, one cannot term the Supreme Court
Collegium as superior to High Court Collegium. The
Supreme Court Collegium does not sit in appeal over
the recommendation of the High Court Collegium. Each
Collegium constitutes a participant in the participatory
consultative process. The concept of primacy and plurality
is in effect primacy of the opinion of the Chief Justice of
[2024] 9 S.C.R. 163

Chirag Bhanu Singh & Anr. v.
High Court of Himachal Pradesh & Ors.

India formed collectively. The discharge of the assigned
role by each functionary helps to transcend the concept
of primacy between them.”
23. What was emphasized above is that collaborative deliberations bring
in transparency in the process, as decisions are deliberated, debated,
and recorded. This contributes to public trust in the judiciary, as it
demonstrates that appointments are being made based on thorough
consideration.
24. Tracing the departure in the process of appointment of judges pre
and post-1990 after the emergence of the Collegium system, a legal
Scholar14 notes that the Second Judges case (supra) effectively
ended the ‘primacy’ or the ‘preponderating voice’ of the Chief Justice
over senior colleagues. Contrasting the observations of the Law
Commission, in its 80th Report in 197915 with the current system,
the author observes that while the Commission recommended that
a Chief Justice of a High Court should consult his two seniormost
colleagues before recommending names to the government for judicial
appointments, it did not mandate that these recommendations be
unanimous or binding. However, the collegium system introduced
through the Second Judges case (supra), institutionalized the practice
of consulting senior colleagues, making it binding on the chief justice.
25. With the above judgments holding the field, it is difficult to accept the
contention of the learned Senior Counsel, Dr. Muralidhar who argued
that the Chief Justice of the High Court can individually reconsider a
candidate based on how Resolutions are worded. To substantiate this
argument, various Supreme Court Resolutions were placed before
us to show that there is a difference in language and in the present
case, it was specifically addressed to the Chief Justice of the High
Court. It was contended that this wide power of the Collegium to
direct reconsideration individually by the Chief Justice may not be
curtailed. We are disinclined to accept this view as it is well-settled
that the Supreme Court Collegium does not sit in appeal over the

14 Abhinav Chandrachud, ‘The Fictional Concurrence of the Chief Justice’ in Supreme Whispers,
Conversations with Judges of the Supreme Court 1980-1989 (OUP 2018) 162-166
15 Law Commission of India, ‘The Method of Appointment of Judges’ (80th Report, August 1979)
Available at https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/
20220805100-2.pdf, <Last accessed on 5.9.2024>
164 [2024] 9 S.C.R.

Digital Supreme Court Reports

High Court Collegium.16 It is a participatory process where each of
the Constitutional functionaries have a role to play. In our opinion,
the language therein by itself cannot be understood as permitting
the Chief Justice of the High Court to act on his own, in matters of
recommendation or even reconsideration, for elevation to the High
Court bench. The recommendation by the Supreme Court Collegium
for reconsideration, is not expected to be addressed individually to
all the members of the High Court Collegium. Such communications
are naturally addressed to the Chief Justice of the concerned High
Court but as noted earlier, the letter addressed to the Chief Justice
will not enable the Chief Justice to act without participation by the
other two Collegium members.
26. In this case, the Court is not concerned with the aspects of ‘suitability’
of the petitioners for elevation as judges of the High Court or even
the ‘content of consultation’. Our scrutiny is limited to whether the
reconsideration of the proposal for the elevation of the two petitioners,
was jointly made by the Collegium members of the High Court,
following the Supreme Court Resolution dated 4th January 2024.
27. This Court is mindful of the limited scope of interference in such
matters. But this appears to be a case where there was no collective
consultation amongst the three Constitutional functionaries of the
High Court i.e. the Chief Justice and the two senior-most companion
judges. The absence of the element of plurality, in the process of
reconsideration as directed by the Supreme Court Collegium, is
clearly discernible.
28. At this juncture, we must also address the submissions on the letter
written by one of the petitioners, as referenced in the Report of the
Registrar General and argued before this Court. It was contended
that the letter contained contemptuous remarks directed at the
Supreme Court Collegium. We have perused the letter. It is definitely
an expression of hurt by the judicial officer, but will not bring the
letter into the contemptuous category.
29. Before parting, it needs to be stated that there is also a need to
protect certain sensitive information in matters involving appointment
of judges. While transparency is necessary to ensure fairness and

16 Mahesh Chandra Gupta v. Union of India (2009) 8 SCC 273
[2024] 9 S.C.R. 165

Chirag Bhanu Singh & Anr. v.
High Court of Himachal Pradesh & Ors.

accountability, it must be carefully balanced with the need to maintain
confidentiality. Disclosing sensitive information would compromise not
only the privacy of the individual but also the integrity of the process.
30. In the case before us, the procedure adopted in the matter of
reconsideration of the two petitioners is found to be inconsistent
with the law laid down in the Second Judges (supra) and the Third
Judges case (supra). There was no collective consultation and
deliberations by the members of the High Court Collegium. The
decision of the Chief Justice of the High Court, on the suitability of
the two petitioners as conveyed in his letter dated 6th March 2024,
appears to be an individual decision. The same therefore stand
vitiated both procedurally and substantially.
31. The final finding from the above is as follows:-
i) The writ petition is maintainable as it questions the lack of
effective consultation;
ii) The Chief Justice of a High Court cannot individually reconsider
a recommendation and it can only be done by the High Court
Collegium acting collectively.
32. In light of the above, the High Court Collegium should now reconsider
the names of Mr. Chirag Bhanu Singh and Mr. Arvind Malhotra for
elevation as Judges of the High Court, following the Supreme Court
Collegium decision dated 4th January, 2024 and the Law Minister’s
letter dated 16th January, 2024. It is ordered accordingly.
33. The matter stands allowed in above terms.

Result of the case: Writ petition allowed.

†
Headnotes prepared by: Divya Pandey