Centre Must Stop 'Pick & Choose' Approach To Collegium Proposals : Supreme Court Deprecates 'Selective' Appointments Of Judges

Awstika Das

7 Nov 2023 9:47 AM GMT

  • Centre Must Stop Pick & Choose Approach To Collegium Proposals : Supreme Court Deprecates Selective Appointments Of Judges

    The Supreme Court on Tuesday (November 7) again expressed disapproval of the 'pick and choose' approach adopted by the central government in selectively accepting names from the collegium resolutions for judges' appointments. It also conveyed its concerns to the Attorney General for India R Venkataramani over the pendency of certain proposals made by the collegium for the transfer of high...

    The Supreme Court on Tuesday (November 7) again expressed disapproval of the 'pick and choose' approach adopted by the central government in selectively accepting names from the collegium resolutions for judges' appointments.

    It also conveyed its concerns to the Attorney General for India R Venkataramani over the pendency of certain proposals made by the collegium for the transfer of high court judges. "The transfers must be notified, otherwise, it creates an anomaly in the system. Once a judge has been appointed, where they perform their judicial function is a matter of no concern to the government. Tomorrow, the collegium can collectively advise to not assign judicial work to a particular bench. Don't make us take this step, but it is not beyond our powers to do it. This is not an off-hand remark, but something I have discussed with the collegium," the court cautioned the law officer.

    The bench comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was hearing a petition filed by the Advocates Association of Bengaluru seeking contempt action against the Union Ministry of Law and Justice for not adhering to the timeline set by the Court in a 2021 judgment for clearing collegium proposals on November 7, 2023. A writ petition filed by the non-profit Centre for Public Interest Litigation raising the issue of delay in judicial appointments was also listed along with the contempt petition.

    During today's hearing, the bench orally deprecated the Centre's practice of 'segregating' collegium recommendations, which resulted in the inter-se seniority of judicial nominees being disturbed. Justice Kaul cited the example of recent appointments cleared for the Punjab and Haryana High Court. While the Supreme Court collegium had recommended the elevation of five advocates as judges of the high court, the union government cleared only three names, ignoring the first and second names proposed. Justice Kaul said that other recent appointments made by the Centre also followed this pattern and categorically asked it to discontinue this practice. Justice Kaul, addressing the attorney-general said, "This selective business...This pick-and-choose must stop."

    During the hearing, Advocate Prashant Bhushan, representing the Centre for Public Interest Litigation, expressed his dissatisfaction with the method adopted by the court, describing it as far too 'gentle'. Urging the court to 'crack the whip' instead of relying on the attorney general's assurances by summoning the law secretary or the law minister to explain in person why the government had not complied with the court's earlier directions, Bhushan said, "This can't go on indefinitely on the attorney's assurance that he will sort out the matter. It's time for Your Lordships to crack the whip because the govt is getting the impression that it can get away with this. You have to summon the law secretary or the law minister. Otherwise, this will never be sorted. Let them come and say what instructions they have from higher-ups. Ultimately, Your Lordships will have to haul up somebody for this gross contempt of court."

    Senior Advocate Arvind P Datar, representing the Advocates Association of Bengaluru, urged the court to pass directions under Article 141 of the Constitution. "This is not a problem with this government, or that government. This is a chronic problem. Maybe the time has come for Your Lordships to law down the law under Article 141. This shouldn't need the nudging of the court. Once the timeline is set, it should be by default. Justice Dhulia mentioned it cannot be deemed to be appointed because who will sign, that's another issue," the senior counsel said.

    While appreciating the limited headway made in terms of judicial appointments, the court today raised concerns over the lack of progress since the last date of hearing. It specifically asked the attorney-general to focus his attention on the issue of the pendency of proposals to transfer judges from one high court to another, as well as the issue of selectively appointing nominees endorsed by the Supreme Court collegium breaking up the line of seniority. "I thought the last time we made progress and came closer to a reconciliation. This issue needs to be finished. I've now flagged two issues that have really troubled us. Please see to these," Justice Kaul told the law officer. In its order, the bench recorded his assurance that he would take these up with the government.

    With respect to the pendency of transfers, the court warned that it might pass orders on the judicial side if the problem persists.   "We hope the situation does not come to a pass that the collegium or this court takes a decision which is not palatable," the bench observed in the order.

    Notably, the court also shared its anxieties about the difficulty in persuading successful lawyers to join the bench owing to the delay in the process or the selective appointments. "Lawyers accept judgeship as a sense of responsibility, as a contribution to society. Why would they accept it? Who, with a reasonable law practice, will put their neck on the block, hoping that their names will get cleared? People, who are senior...when they lose out, they will withdraw...There also needs to be quietus once a name has been proposed so that there is not an indeterminate time period where the person keeps hoping that something is happening," Justice Kaul remarked. In the order, the bench stated -

    "In recommendations made recently, selective appointments have been made. This is also a matter of concern. If some appointments are made, while others are not, the inter-se seniority is disturbed. This is hardly conducive to persuading successful lawyers to join the bench."

    As of today, there are five old names pending despite being reiterated by the collegium for the second time or otherwise, and 14 newer proposals to which there has been no response from the Centre yet, the court revealed during the hearing. After dictating the order, Justice Kaul told Attorney-General R Venkataramani, "Mr Attorney, show some progress. This transfer issue stares in the face immediately, apart from selective appointments."

    In September, the court reiterated its apprehensions to Attorney-General R Venkataramani over the government's delay in clearing the names or notifying the recommendations, pointing out that seventy recommendations made by high court collegiums since November 11, 2022, were pending with the Centre. The bench also stressed that seven names reiterated by the Supreme Court collegium, nine names proposed for the first time, one chief justice promotion, and 26 transfer proposals were still pending. Almost all of the 70 recommendations made by the high courts were forwarded to the Supreme Court and some headway was made with respect to the other pendencies, it was revealed during the next hearing in October.

    On the last occasion, 'positive developments' with respect to judicial appointments were commended in view of the slew of appointments and transfers of high court judges notified by the central government after the apex court's rebuke. At the same time, the bench once again reiterated its concerns about the segregation of names and the pendency of certain collegium proposals.

    The matter will be taken up again on Monday, November 20.


    In April 2021, a bench comprising then-Chief Justice SA Bobde, and Justices Sanjay Kishan Kaul and Surya Kant, in PLR Projects v. Mahanadi Coalfields, expressed serious concerns over the growing number of vacancies in high courts and urged the central government to promptly notify the appointments of candidates endorsed by the Supreme Court collegium. The court said that while the government could share its reservations regarding the recommendations, if any, by returning the names with specific reasons for its concerns, it should make the appointments within three to four weeks once the names are reiterated by the Supreme Court collegium.

    To streamline the process, the court established a timeline: The Intelligence Bureau (IB) should submit its reports to the central government within four to six weeks from the date of the high court collegium's recommendation; in turn, the central government should forward the recommendations to the Supreme Court within eight to 12 weeks of receiving the intelligence agency's inputs and the state government's views; after the Supreme Court collegium sends its recommendations, the Centre should immediately notify the appointments of the candidates so endorsed, or return the recommendations within the same period, specifying the reasons for its reservations; and finally, if any or all of the names are reiterated, the appointments would have to be processed and notified within three to four weeks from the receipt of the names.

    Later in the same year, a contempt petition was filed by the Advocates Association Bengaluru accusing the Centre of violating the court's directions by not approving 11 names reiterated by the Supreme Court collegium.

    Last November, when the Supreme Court sought the Centre's response to the contempt petition, it triggered a heated confrontation between the judiciary and the executive on the issue of judicial appointments. After this case was taken up, the then Union Law Minster Kiren Rijiju used several public platforms to openly question the validity of the collegium system. The law minister's public remarks were met with disapproval from the court, which on its judicial side expressed dismay and urged the attorney-general to advise the Centre to follow the law laid down by the court regarding judicial appointments.

    On a previous occasion, the Attorney-General for India R Venkataramani, on behalf of the government, assured the court that the timeline for judicial appointments would be followed and the pending collegium recommendations be cleared soon. Despite this assurance, the Centre has, for instance, not yet notified the appointment of advocates Saurabh Kirpal, Somasekhar Sundaresan, and John Satyan despite the court reiterating their names rejecting the government's objections.

    On another occasion, the court also reminded that once the aspect of a memorandum of procedure was settled by a constitution bench judgment, the Centre could not circumvent it. Any delay in appointments 'frustrated the whole system', the court has said. It also expressed grave concerns over the Centre's practice of 'splitting up collegium resolutions', disrupting the seniority of the persons nominated for judgeship. The issue, which had died down for a while after the Centre cleared a spate of collegium resolutions, now seems to be coming back alive with the Court expressing its strong intention to pursue the matter.

    Case Title

    Advocates Association Bengaluru v. Barun Mitra & Anr. | Contempt Petition (Civil) No. 867 of 2021 in Transfer Petition (Civil) No. 2419 of 2019

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