New Delhi: One of the two lawyers recommended for elevation as a judge of the Madhya Pradesh High Court by the Supreme Court collegium Monday is the younger brother of top court judge Arun Mishra, the latest example of relatives being picked as judges in the higher judiciary.
Vishal Mishra is the younger brother of Justice Arun Mishra, who is a member of the larger five-judge Supreme Court collegium that decides appointments to the apex court. Appointments to high courts are decided by a smaller, three-member collegium. Arun Mishra’s father H.G. Mishra was also a high court judge.
The resolution of the collegium — signed by the three senior-most judges of the Supreme Court — stated: “The Chief Minister and the Governor of Madhya Pradesh have concurred with the recommendation.”
It further added: “In order to ascertain suitability of the above-named recommendees for elevation to the High Court, we have consulted our colleagues conversant with the affairs of the Madhya Pradesh High Court.”
The MP high court is the parent high court of Justices Arun Mishra and A.M. Sapre, while Justice Hemant Gupta, who was elevated to the top court last year in November, was the chief justice of Madhya Pradesh High Court when Vishal Mishra’s name was recommended along with four others.
Justice S.A. Bobde, who is one of the judges in the smaller collegium, and Justice A.M. Khanwilkar have both served as chief justices of Madhya Pradesh High Court.
‘Arun Mishra ought to have recused himself’
Arghya Sengupta, head of a legal think tank Vidhi Centre for Legal Policy, said one must look at the process of appointing judges in the larger context.
“There does not appear to be any norm, just a process. Since the top three judges have signed on the recommendation, there doesn’t seem to be any conflict of interest per se,” Sengupta said.
“Justice Bobde was a chief justice of Madhya Pradesh High Court. Hence, he himself is conversant with the affairs of that court. However, in the event, Arun Mishra was consulted, we expected him to recuse himself,” Sengupta added.
‘Collegium carefully scrutinised material on record’
The resolution available on the Supreme Court website says “for purpose of assessing merit and suitability of the above-named recommendees for elevation to the High Court” the collegium “carefully scrutinised the material on record including the observations made by the Department of Justice as well as certain complaints”.
There was a concern with respect to Vishal Mishra’s name since he was below the mandatory age of 45 years when he was recommended by the MP High Court collegium in September 2018. It was understood that the central government had also conveyed its views to the chief justice of India on the issue of Vishal Mishra not fulfilling the age criteria.
However, the collegium addressed this concern when it said: “As far as age factor of Shri Vishal Mishra is concerned, the Collegium is fully satisfied with the justification given by the High Court Collegium while recommending his name.”
The resolution further stated that the recommendation came after the collegium interacted with the five recommendees last month in April.
The collegium system
The Narendra Modi government has been insisting that the collegium system should be more transparent in its functioning to put an end to the system of kin of judges being given preferential treatment in appointments.
This was one of the primary reasons why the BJP-led NDA government pushed the National Judicial Appointments Committee (NJAC) Act and received near-unanimous support in Parliament — only BJP rebel and senior advocate Ram Jethmalani refused to support it.