Centre vs Collegium : Supreme Court Warns Centre May Face 'Unpalatable' Action If Transfer Proposals Are Not Approved Soon

The Supreme Court, on Friday, stated in no unclear terms, that it would be constrained to take ‘unpalatable’ judicial as well as administrative actions if there is any further delay on the part of the Union Government in considering the recommendations made by the Supreme Court Collegium for transfer of judges.

On the last date of hearing, the same concern was echoed by the Bench comprising Justice S.K. Kaul and Justice A.S. Oka. Justice Kaul had orally observed -

"Ten recommendations for transfer have been made. These have been made in the end of September and end of November. In that the government has very limited role. Keeping them pending sends a very wrong signal. It is unacceptable to the collegium.”

The Bench had recorded the following in its order dated 06.01.2023 -

“Last aspect which we want to deal with, and currently is of considerable importance, is the recommendations made for transfer of High Court judges made by the collegium, numbering 10. Two of them were sent at the end of September 2022, and eight were sent at the end of November 2022. The transfer of High Court judges is done in the interest of administration of justice and exceptions apart, there is no reason for any delay on the party of the government in implementing the same. The Collegium consults and seeks opinion of the judges and also the Chief Justices of the High Courts from where the transfer is being made and where to the transfer is made. Comments of the judges transferred are also obtained. At times, at the request of the judge concerned, alternative courts are also assigned for transfer. This process is completed before a recommendation is made to the government. Delay in the same, not only affects the administration of judges, but also creates an impression of third party sources interfering on behalf of these judges with the government".

On Friday, the Attorney General for India, Mr. R. Venkataramani beseeched the Bench to defer the hearing with respect to the issue - recommendations made by the Collegium regarding transfer of High Court judges remaining pending. In response, Justice Kaul expressed his displeasure, and stated that deferring transfer orders is a more serious infraction than keeping recommendation for new appointments pending. He indicated that any further delay may result in the Court taking decisions, which may turn out to be ‘uncomfortable’ for the Centre.

“Something has been greatly troubling us…if transfer orders issued are not implemented…If we think somebody should be working in B court instead of A court and you keep this issue pending it is very very serious, more serious than anything else. You will make us take some very very difficult decisions.”

Justice Kaul on behalf of the Bench made it clear that the Court would not permit third parties to play games in the process of transfer of judges. It may be noted that the bar associations of the High Courts of Gujarat, Telangana and Madras had launched protests against some transfer proposals.

“I can understand about a new appointment, you have something to say,...but transfer…We have said so that we will not let third parties play a game in this.”

He added -

“Attorney, don’t let us take a stand which would be very uncomfortable…”

In this backdrop, the Justice Kaul dictated the order as follows-

“We have put it to the Ld. AG as on the last date of hearing that there should be no question of transfer of judges from one court to the other pending before the Govt for such a long period of time. Moreso, because the Govt has little role in it. We have put to the AG that any delay in this may result in both administrative and judicial actions which may not be palatable. Attorney requested a deferment for a short time.”

However, in the final version of the order which has been uploaded, it is recorded as follows :

"We have put to the learned Attorney General that any delay in this is not acceptable"

Also from today's hearing - Pending Recommendations To Appoint 5 SC Judges Will Be Cleared Soon : AG Tells Supreme Court

Background

The Advocates Association Bengaluru 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]

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