Merit Over Application: Justice Kant Defends Suo Motu Appointments Amid CIC Transparency Hearing

New Delhi – In a significant hearing concerning transparency in appointments to Information Commissions, the Supreme Court of India witnessed a compelling defence of appointing eminent individuals who may not have formally applied for a position. Justice Surya Kant, presiding over the bench, shared a powerful anecdote from his tenure at the Punjab and Haryana High Court, arguing that the power to make suo motu designations is a crucial tool for recognizing exceptional merit in "reasonable cases."

The remarks came during the hearing of a Public Interest Litigation (PIL) filed by activist Anjali Bhardwaj, which raises concerns about delays and the lack of transparency in appointing Central and State Information Commissioners. The case, ANJALI BHARDWAJ AND ORS. Versus UNION OF INDIA AND ORS. , has become a focal point for scrutinizing the executive's adherence to appointment guidelines under the Right to Information (RTI) Act.

The Context: Scrutiny of a Non-Applicant Pool

The issue arose when Advocate Prashant Bhushan, representing the petitioners, informed the bench that the Union Government was allegedly considering candidates for the posts of Information Commissioners who had not submitted formal applications. This submission was intended to highlight a potential deviation from a transparent and standardized selection process.

However, Justice Kant offered a nuanced perspective, suggesting that considering a non-applicant is not inherently problematic. His observation served as a prelude to a candid recollection from his past, aiming to illustrate that rigid adherence to application-based processes could lead to overlooking highly deserving individuals.

"Let's not doubt everything," Justice Kant remarked from the bench. "Sometimes what happens is...there may be a person of eminence. He may not apply because he does not want to be subject to [...] there are lawyers who say we will not submit applications for being designated as senior."

This statement touches upon a well-known sentiment within the legal fraternity, where some distinguished practitioners are reluctant to formally seek senior designation, viewing the application process as subjecting their established reputation to unnecessary scrutiny.

A "Tooth and Nail" Fight for Suo Motu Designation

To substantiate his point, Justice Kant detailed his personal experience advocating for the suo motu senior designation of Advocate Anupam Gupta at the Punjab and Haryana High Court. Anupam Gupta, a senior lawyer renowned for his role as counsel for the Liberhan Commission which investigated the Babri Masjid demolition, had not applied for the coveted designation.

Justice Kant reminisced about the internal deliberations of the High Court's full house, revealing the robust debate that took place.

"Mr Anupam Gupta in P&H High Court never applied," Justice Kant stated. "I fought tooth and nail that this power of suo motu should be exercised in some good cases, in reasonable cases. Justice Randhawa (former judge) supported like anything. Both of us then ultimately persuaded the entire House that we should exercise suo motu power. We did it."

This personal account provides a rare glimpse into the functioning of the collegium system at the High Court level for senior designations. It underscores that the power of suo motu recognition, while discretionary, is often exercised after intense persuasion and is rooted in the collective judgment of the judges. Justice Kant’s narrative suggests that such a power is not arbitrary but is reserved for exceptional cases where an individual's eminence is widely acknowledged, making a formal application a mere procedural formality. He also acknowledged the reality of professional life, adding, "It's not that he does not have critics... nobody is spared in the system."

Legal and Procedural Implications

Justice Kant's defence of suo motu powers in the context of judicial designations, and by extension to other public appointments, raises critical questions about the balance between procedural fairness and the recognition of merit.

• The Role of Suo Motu Power: The Supreme Court Rules, 2013, and various High Court rules governing the designation of senior advocates explicitly provide for suo motu designation by the Full Court. This power is seen as a mechanism to honour legal professionals of extraordinary ability and standing who might not seek the designation themselves. Justice Kant’s argument implies that a similar logic could apply to other high-level appointments, where the search committee's role is not just to filter applicants but to actively identify the most suitable candidates, regardless of whether they have applied.

• Transparency vs. Discretion: The core of the PIL filed by Anjali Bhardwaj is the demand for greater transparency. The petitioners argue that considering non-applicants without public disclosure of their names undermines the principles of a fair and open selection process. While the Court's observation defends the principle of seeking out merit, it simultaneously creates tension with the demand for a process that is auditable and transparent at every stage.

• Judicial Deference to the Executive: Despite the petitioners' strong push for the disclosure of shortlisted names, the bench ultimately declined to issue such a directive to the Union Government. The Court expressed its faith in the executive, observing that there was “no reason to doubt” that the Centre would adhere to the previously established guidelines for transparent appointments under the RTI Act. This stance reflects a degree of judicial deference, placing the onus on the government to act in good faith while stopping short of imposing stricter, real-time transparency measures.

The Broader Debate on Appointments

The exchange in the courtroom encapsulates a recurring debate in Indian public and judicial administration. On one hand, advocates for transparency and procedural purity argue that every appointment must follow a clearly defined, application-based, and publicly scrutable process to prevent arbitrariness and nepotism. On the other hand, a compelling argument exists that an over-reliance on rigid procedures can be self-defeating, as it may deter eminent, highly-qualified individuals who are disinclined to enter a competitive application process.

Justice Kant's anecdote about Anupam Gupta, who was successfully designated in 2012 through this very process, serves as a powerful real-world example of the latter argument. It posits that a system should be flexible enough to accommodate and actively seek out exceptional talent.

As the case continues, the Supreme Court's final decision will be closely watched. While the bench has shown trust in the government's process for now, the fundamental questions raised by the petitioners about ensuring a transparent and accountable appointment mechanism for Information Commissioners—who are themselves guardians of transparency—remain at the heart of the matter. The hearing has effectively broadened the discourse from a procedural checklist to a more profound debate on how a system best identifies and secures talent for public office.