CJI BR Gavai drew the line, the government crossed it: What will Supreme Court do now?

When Chief Justice of India (CJI) BR Gavai took over the reins of the Supreme Court last month, he conveyed to the Central government in no uncertain terms that it cannot pick and choose names that are recommended by the Collegium.

It wasn’t an off-the-cuff remark, rather a deliberate one that seemed to reflect a deeper institutional unease with how judicial appointments have been handled in the recent past.

Speaking at a public event a month later, CJI Gavai vowed to usher in transparency in Collegium recommendations and stated that the top court will adopt a procedure of complete transparency.

"Merit will never be compromised. We will have representatives from all sections of society. Names of all recommended will be followed up," the CJI said.

Yet, just days later, the Central government cleared only two out of four names recommended for elevation to the Bombay High Court, quietly ignoring the first and most senior name on that list - Advocate Rajesh Sudhakar Datar.

In light of this development, Datar has withdrawn his consent for judgeship.

This is not just a contradiction of principle. It is a moment of quiet institutional failure.

On September 24 last year, the Supreme Court Collegium headed by the then CJI DY Chandrachud had recommended four advocates — Datar, Sachin Shivajirao Deshmukh, Gautam Ashwin Ankhad and Mahendra Madhavrao Nerlikar — for appointment as judges of the Bombay High Court.

The order in which the names were recommended was not arbitrary. It was based on internal deliberations, seniority and professional track record. And Datar came first.

With more than three decades of legal practice, Datar was found fit and suitable by the Collegium after consultation with senior Bombay High Court judges. His credentials were solid. His integrity was affirmed by the Union Law Ministry's Department of Justice.

He had a reported income of over ₹23 lakh per annum and had argued in dozens of reported judgments across civil, criminal and constitutional matters.

But when the government finally acted on the Collegium's recommendation nearly ten months later, only Deshmukh, Ankhad and Nerlikar were cleared. No explanation was offered as to why Datar's recommendation was withheld. No formal rejection was communicated. And no effort was made to respect the sequence in which the names had been sent.

This is exactly what CJI Gavai warned against when he spoke at a public forum in late June. He said that the executive cannot treat the Collegium’s decisions like a buffet table. Either you take them all or nothing at all.

That warning has now been tested, and not heeded.

Datar’s decision to step away is not a small matter. It signals a loss of faith in the process of judicial appointments. When a candidate who has cleared every layer of scrutiny decides to walk away after months of silence, it raises a serious question. What message is being sent to the rest of the Bar?

This isn’t the first time the government has split a Collegium recommendation.

Over the years, similar patterns have emerged - partial clearances, unexplained delays, selective silence. But what makes this moment different is the timing. A sitting Chief Justice publicly cautioned the executive, and yet, within days, the same pattern repeated itself.

The judiciary has remained silent since the notification was issued. No letter of reiteration, no recorded objection, no public statement from the Collegium. What remains is a gaping disconnect between the words spoken at a public forum and the action, or rather the lack thereof, that followed.

This silence matters. It creates space for the executive to act without accountability. It chips away at the principle of institutional coherence and it tells future appointees that even officially recognised merit may not be enough.

If this continues, the process itself begins to look vulnerable. The longer the judiciary condones these decisions without protest, the more it cedes space. It becomes difficult to argue for independence when its own decisions are left hanging without defence.

And Datar is not the only one to walk away.

Earlier this year, intellectual property lawyer Shwetasree Majumdar withdrew her name from consideration for judgeship at the Delhi High Court. She had been recommended by the Collegium in August 2024 alongside Ajay Digpaul and Harish Vaidyanathan Shankar.

In January 2025, the government notified the appointments of Digpaul and Shankar. Majumdar’s name was left out.

There was no rejection or clarification. Only silence.

Nearly a year after her recommendation, Majumdar formally withdrew her consent. Her decision sent a clear message. When the government stays unresponsive and the Supreme Court offers no resistance, the process becomes a waiting game with no rules. And at some point, good candidates walk away.

Majumdar’s case mirrored Datar’s. Both were found eligible. Both were senior to at least some names in their batch of recommendations. And both watched the process pass them by without explanation.

Go back a little further and one will find the case of Senior Advocate Aditya Sondhi, who was recommended as a Karnataka High Court judge in 2021. The Collegium reiterated his name in early 2022. But nothing happened. Sondhi later withdrew consent and resumed his thriving practice.

A fourth name that deserves to be recalled here is that of Advocate R John Sathyan, whose file has now faded from institutional memory. His name was first recommended by the Supreme Court Collegium on February 16, 2022 for elevation to the Madras High Court.

It was reiterated in January 2023 with the Collegium making it a point to record that Sathyan’s file should be processed before others in order to protect his seniority.

And yet, others who were recommended alongside him - including L Victoria Gowri, K K Ramakrishnan, V Sivagnanam and R Sakthivel - were cleared almost immediately. They were sworn in while Sathyan remained on hold.

The government reportedly raised objections to his name based on old social media posts made by him, one of which was about Prime Minister Narendra Modi.

The Collegium rejected those objections in clear terms, stating that criticism of the government or a political leader could not be treated as a blemish on a lawyer’s professional credentials.

But even that reiteration did not move the file. Months passed.

Eventually Sathyan, once a frontrunner, resumed his law practice. What is the message conveyed when the system ignores a name long enough to push the candidate out without ever having to say no? It only seems colder and more permanent than a rejection.

These are not isolated events. They reflect a system where qualified, vetted lawyers with solid standing at the Bar are sidelined not by scrutiny but by silence. None of them were rejected. Their names weren’t returned. They were simply left to wait. And then left to exit.

Each withdrawal chips away at the credibility of the process. The problem is not just that deserving candidates are walking away. It is that the system is allowing them to walk out without a word.

This is what makes CJI Gavai’s move so critical. He named the problem. But unless the Collegium follows through and asserts its position with something more than a speech, that warning will mean little.

The government has made its choice. The Court is still silent for now.