Pending Recommendations To Appoint 5 SC Judges Will Be Cleared Soon : AG Tells Supreme Court
The Attorney General for India R Venkataramani on Friday informed the Supreme Court that the Central Government will very soon clear the recommendations forwarded by the Supreme Court collegium in December 2022 to elevate five High Court judges to the Supreme Court.
Replying to a query raised by the Court regarding the status of the pending recommendations, the AG assured that warrants of appointments for these judges will be issued by Sunday.
A Bench comprising Justice S.K. Kaul and Justice A.S. Oka was considering a contempt petition filed by the Advocates Association Bengaluru against the Centre not adhering to the time-line for judicial appointments.
"5 names were proposed in December. Now we are in February", Justice Kaul told the AG during the hearing.
"They will be cleared", AG replied.
"Can we record that the warrants will be issued?", Justice Kaul asked.
"They will be issued", AG replied.
"When?", Justice Kaul asked to which AG said, "I am given to understand that by Sunday they will be issued. It has gone to the President, may be today evening also it is likely".
The bench then recorded in the order as follows :
"Learned Attorney General submits that so far as five recommendations made for appointment to the Supreme Court are concerned, the warrants will be issued within a maximum period of 5 days".
However the AG requested that the days may not be recorded in the order. Justice Kaul then pointed out that five days have been granted, though the AG said the warrants will be issued by Sunday.
"You said Sunday, we gave a longer leeway, because sometimes there will be unexpected delays", Justice Kaul said. The judge also said "when things have not been happening for years together" it might be necessary to specify a clear timeline. However, in the final version of the order which has been uploaded, it is recorded as follows :
"Learned Attorney General submits that so far as the five recommendations made by this Court for appointment to the Supreme Court are concerned, “it is happening”"
As regards pending recommendations regarding appointments in High Courts, the AG sought for some time.
On December 13, 2022, the Collegium had recommended the elevation of Justice Pankaj Mithal(Chief Justice, Rajasthan High Court), Justice Sanjay Karol( Chief Justice, Patna High Court), Justice P.V. Sanjay Kumar( Chief Justice, Manipur High Court), Justice Ahsanuddin Amanullah (Judge, Patna High Court), and Justice Manoj Misra(Judge, Allahabad High Court).
"Bench expresses concern regarding transfer recommendations pending
In the hearing today, the bench also reiterated its concern regarding the proposals for transfer of judges still pending with the Centre. "This is really troubling us", Justice Kaul said. On the last occasion, the bench had observed that the delay in approving the transfer proposals create a perception of "third party interference".
Noting that no decision has been taken by the Centre for the proposals regarding transfer of certain High Court judges- which were made in November 2022-Justice Kaul cautioned the AG, "don’t let us take a stand that is going to be uncomfortable .".
"We have put to the AG that any delay in this(transfer proposals) may lead to both judicial and administrative actions which might not be palatable", the bench noted in the order.
"Sometimes you do it overnight, sometimes takes days. There is no uniformity", Justice Kaul said. It may be noted that the bar associations of the High Courts of Gujarat, Telangana and Madras had launched protests against some transfer proposals.
The bench also reminded the AG that one judge, who has been recommended to be appointed as a Chief Justice of HC, is demiting office in 19 days. The AG said that he is aware of that and assured that he will oversee the matter.
During the hearing, Advocate Prashant Bhushan flagged the issue of Centre not appointing names which were reiterated by the collegium long ago. Advocate Amit Pai also raised the issue of "judiciary being attacked" repeatedly by Government functionaries.
"We are quite used to it", Justice Kaul said without elaborating further.
The matter will be next heard on February 13.
The Association has filed the contempt petition contending that the Centre's conduct is in gross violation of the directions in PLR Projects Ltd v. Mahanadi Coalfields Pvt Ltd wherein the Supreme Court directed that names reiterated by the Collegium must be cleared by the Centre within 3 to 4 weeks.
On the last date of hearing, the Central Government assured the Court that the timelines on judicial appointments will be followed and the pending collegium recommendations will be cleared soon.
Previously, the Court had expressed dismay over the Law Ministers' comments against the collegium system. The Court had also urged the Attorney General and the Solicitor General to advise the Centre to follow the law laid down by the Court regarding judicial appointments. The Court reminded that names reiterated by the Collegium are binding on the Centre and that the timelines laid down for completing the appointment process are being breached by the executive.
While expressing a serious concern that the delay in appointments "frustrates the whole system", the bench also flagged the issue of Centre "splitting up collegium resolutions" as it disrupts the seniority of the recommendees.
On Nov 11, criticising the Centre for delaying the appointments, the Court had issued notice to the Secretary (Justice).
"Keeping names pending is not acceptable. We find the method of keeping the names on hold whether duly recommended or reiterated is becoming some sort of a device to compel these persons to withdraw their names as has happened.", the bench noted in the order.
The Bench observed that in the cases of 11 names which have been reiterated by the collegium, the Centre has kept the files pending, without giving either approval or returning them stating reservations, and such practice of withholding approval is "unacceptable".
"If we look at the position of pending cases for consideration, there are 11 cases pending with the Government which were cleared by the Collegium and yet are awaiting appointments. The oldest of them is of vintage 04.09.2021 as the date of dispatch and the last two on 13.09.2022. This implies that the Government neither appoints the persons and nor communicates its reservation, if any, on the names.", the Bench observed in the order.
[Case Title: Advocates Association Bengaluru v. Barun Mitra And Anr. Contempt Petition (C) No. 867/2021 in TP(C) No. 2419/2019]