"Arbitrary : based on random choice or personal whim, rather than any reason or system".
This dictionary definition of 'arbitrary' well applies to the Central Government's inconsistent approach in responding to the reiterations made by Supreme Court Collegium.
As per the dictum in the Second Judges' Case, the reiteration by Collegium is binding on Central Government. But this categorical rule is circumvented by the government in many cases by simply sleeping over the files, without any concrete action.
There are many re-recommended names, which are still not notified by the Centre.
Three files reiterated during the tenure of CJI Gogoi are still pending. They are :
- Amit Negi, Allahabad High Court (reiterated in December 2018)
- Sandipan Ganguly, Calcutta High Court (reiterated in January 2019)
- P V Kunhikrishnan, Kerala High Court (reiterated in February 2019).
Besides, some reiterations made in 2018 during the tenure of former CJI Dipak Misra are also still pending. They are :
- Sanjay Kumar Medhi, Gauhati HC (reiterated in August 2018)
- C Emalias, Madras HC (reiterated in August 2018)
There is no consistent pattern in the responses of Central Government to Collegium reiterations. In some cases, they are accepted soon (in the case of Vishnukumar Prabhudas Patel, whose appointment as Gujarat HC judge was notified in January this year within weeks of reiteraton); in some cases, they are accepted after several months (Senthilkumar Ramamoorthy, Madras HC & Nania Tagia, Gauhati HC); and in most cases, they are kept pending for several months.
In cases of proposals to Kerala High Court and Calcutta High Court, the Centre had sent back names by splitting up composite proposals made by Collegium. The names of Sandipan Ganguly and P V Kunhikrishnan were selectively held back, though the other names which were forwarded along with them were accepted by Centre.
The Centre has also split up collegium reiterations as well. Advocate Senthilkumar Ramamoorthy, whose name was also reiterated along with Emalias, was appointed judge of Madras High Court on February 18, 2019. Also, Nani Tagia, whose file was reiterated along with Sanjay Kumar Medhi, was appointed judge of Gauahati HC last November.
There is also absolute lack of clarity regarding the process adopted by the CJI in following up reiterations.
Few appointments with lightening speed
It is not that Centre delays notification of collegium proposals in all cases. There are appointments notified with lightning speed.
For example, the proposals for elevation of Justices Hemant Gupta, M R Shah, Ajay Rastogi and S Subhash Reddy to Supreme Court were cleared by Centre within 48 hours of recommendation.
In case of Justices Aniruddha Bose and A S Bopanna, the Centre notified their appointment to Supreme Court within two weeks of Collegium reiteration.
The recent example of face-paced appointment is the case of Justices Vishal Dhagat and Vishal Mishra, who were appointed as judges of Madhya Pradesh High Court on May 22. This was within ten days of Collegium forwarding the proposal. Incidentally, Justice Vishal Mishra is the younger brother of Justice Arun Mishra, a member of 5 member collegium.
The NGO Common Cause has filed a PIL seeking a direction that the names reiterated by SC collegium must be notified by Cent within 6 weeks. Notably, it relies on a Live Law report titled, "Exclusive: Judges Appointments – A Ping Pong Game?" Is indefinite sitting over the files choking the judicial system?", wherein Live Law had collected data to expose the sad state of affairs in terms of judicial appointments.
The selective delay by the Centre has no legally justifiable reason or system, and can be termed only whimsical and arbitrary.
As soon as taking charge in the new Modi cabinet, Union Law Minister Ravi Shankar Prasad said that government will "fast-track judicial appointments". To honour this promise, the Centre should first clear the reiterated files which are pending, on a priority basis.
Since Collegium's reiteration is binding on the centre, its selective delay in acting on the same can only be construed as a colourable exercise of power to scuttle judicial appointments. This makes out a case for setting a timeline for a decision on reiterations.