Manas Dasgupta
NEW DELHI, Sept 26: In a strong indictment of the central government over judges’ appointments, the Supreme Court on Tuesday questioned why the centre has not sent recommendations of high courts to the Collegium even after 10 months and regretted that the judiciary was losing fresh talents because of the indecision of the government.
Hearing petitions alleging delay by the centre in clearing names, a bench of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia said they were closely monitoring the matter. “Eighty names from high court have been pending for a period of 10 months. There is only a basic process that takes place. Your view has to be known so that the collegium can take a call,” said Justice Kaul, addressing the centre. The bench said the transfer of 26 judges and the appointment of a Chief Justice in a “sensitive high court” is pending.
The Supreme Court said the judiciary was losing fresh talent like never before as prospective candidates shortlisted for judgeships in High Courts give up as months tick by without a decision from the government. Many a “bright” legal mind, willing to sacrifice their law practice to join the Bench, have fallen victim to segregation of names by the government, who seemingly prefer one name over the other for unknown reasons, the bench noted.
“People are declining to come. We try, we endeavour to get the best talent. The Bench has lost good talent because of segregation. They drop out, withdraw… I do not want to take any names, but we lost one or two very good people after they withdrew,” Justice Kaul addressed Attorney General R. Venkataramani, appearing for the Centre.
“I have the information of how many names have been pending which have been recommended by the high court but haven’t been received by the Collegium,” Justice Kaul said. Attorney General R Venkataramani sought a week’s time to respond. The bench granted him two weeks and asked him to return with Centre’s submission. The matter will now be heard on October 9.
In strong remarks, Justice Kaul said, “I have a lot to say, but I am stopping myself. I am silent because the A-G has asked for a week to respond, but I won’t be quiet on the next date.” The appointment of judges has been a key issue of contention between the Supreme Court and the Executive. Central ministers have argued that the government should have a role in the selection of judges.
The Supreme Court had in October 2015 struck down the National Judicial Appointments Act that gave the bigger role of Executive in judges’ appointments. The tussle between the Executive and Judiciary was raked up last year by Vice-President Jagdeep Dhankhar’s remarks on how the Supreme Court ruling had “undone” the law.
Soon after, the court had said the Collegium system is the “law of the land” which should be “followed to the teeth”. Just because some sections of the society express a view against the Collegium system, it will not cease to be the law of the land, it said.
Under the Collegium system, the Chief Justice of India and four senior-most judges recommend names of judges for appointment to high courts and the Supreme Court. The names are sent to the centre and following its clearance, appointments are made by the President.
Senior advocate Arvind Datar and advocate Amit Pai, appearing for the petitioner, Advocates Association of Bengaluru, said “segregation of certain names out of a list provided by the Collegiums to the government is very, very embarrassing.”
Advocate Prashant Bhushan said the government continues to segregate names with impunity despite the Collegium forbidding the practice. “The Collegium has said ‘no more’, but yet it goes on,” Mr Bhushan said. He said it was time for the court to “crack the whip and haul someone up for contempt”. “It cannot go on like this,” Mr Bhushan urged.
Justice Kaul drew the Attorney General’s attention to 70 names, recommended for judgeships by the High Court Collegiums, which have been pending with the government for over 10 months, since November 2022.
“Seventy posts of High Court judges lie vacant… Once you receive the recommendations of the High Court Collegium, you have to do some basic processing and forward it to the Supreme Court Collegium. You have not done even that. If your view about them is known, we [Supreme Court Collegium] would take a call… You are not doing that… There is a time frame fixed — approximately four or five months,” Justice Kaul, who is a member of the top court Collegium, told the government side.
He said there was no word from the government on 26 transfers recommended by the Supreme Court Collegium. Nine fresh recommendations made by the Collegium for appointments to High Courts have neither been acted on nor returned to the Collegium by the government.
The fate of seven other names reiterated by the Collegium for appointment to various High Court lie pending with the government in a fog of uncertainty. The Memorandum of Procedure requires the government to appoint names reiterated by the Collegium without further delay.
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