Amidst growing concerns of enhanced Government interference in the appointment of judges, the Narendra Modi government has for the second time returned for reconsideration the names of two lawyers cleared to be appointed as judges of the Allahabad High Court by the three-member Supreme Court collegium.
According to a report by The Print, the files of Basharat Ali Khan and Mohammad Mansoor were returned to the SC collegium late last month. Both the lawyers are understood to be regularly appearing as senior standing counsel in the Allahabad High Court for the Yogi Adityanath government, and were recommended by the collegium in 2016. The Centre however inexplicably sat on the recommendations.
Reports suggest that the Centre has cited some complaints against the two lawyers as the reasons for returning their names. This is despite the fact that the collegium had found the complaints to the "frivolous" the first time the names had been returned.
Notably, once the recommendations were reiterated the first time, the Centre was bound by it, as laid down in the Second Judges Case (1993). The Centre's move in sending them back is, therefore, a clear violation of the Supreme Court's judgments on the issue.
Ever since the Narendra Modi government came to power in 2014, the turf war between the judiciary and the executive over the appointment of judges has only intensified. The rift widened with the Constitution Bench of the Supreme Court striking down the National Judicial Appointments Commission in 2015.
The Apex Court had then directed the Government to draft a new Memorandum of Procedure [MoP] for athe ppointment of High Court and Supreme Court Judges. The MoP has however been getting tossed back and forth between the Centre and the collegium, with both the sides being adamant on their stands on several issues. Several appointments have since been stalled or objected to, the most notable one being that of the elevation of Chief Justice of Uttarakhand High Court, Justice K.M. Joseph to the Supreme Court.
The Centre had rejected Justice Joseph’s elevation in April this year, noting that it would “not be fair and justified to other more senior, suitable and deserving Chief Justices and senior Puisne Judges of various High Courts.”
This was despite the fact that while recommending him in January, the resolution signed by the five-member collegium had stated that they found Justice K.M. Joseph to be “more deserving and suitable in all respects than other Chief Justices and senior Puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India.”
The resolution had, in fact, specifically mentioned that the decision was being taken after considering the combined seniority of Chief Justices and senior Puisne Judges of High Courts, apart from their merit and integrity. Several jurists, former Judges and Advocates had then stepped forth, calling out the Centre for the move, and demanding reiteration of the recommendation by the Collegium.
However, the collegium has deferred the decision to re-recommend him thrice since April. The first deferment occurred on 2 May after which on 11 May, the collegium “on principle” unanimously agreed to re-recommend him, but opined that the reiteration should be accompanied by a few other names for appointment as Apex Court Judges. However, it deferred the decision for the third time] on 16 May.
Notably, the dynamics of the Supreme Court collegium are set to change now after the retirement of Justice J. Chelameswar on 22 June. Justice A.K. Sikri would now become a part of the collegium, which also includes CJI Misra, and Justices Ranjan Gogoi, MB Lokur and Kurian Joseph.