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Collegium System Has Checks & Balances, Says Supreme Court While Disapproving Centre Delaying Judicial Appointments

LIVELAW NEWS NETWORK

12 Nov 2022 5:50 AM GMT

    • Collegium System Has Checks & Balances, Says Supreme Court While Disapproving Centre Delaying Judicial Appointments

    Few days after the Union Law Minister criticised the collegium system as "opaque" and "unaccountable", the Supreme Court passed an order recording disapproval of the Centre delaying judicial appointments, especially by sitting over names which have been reiterated by the Collegium.In what could be perceived by many as a reply to the Law Minister's tirade, the Court asserted that the...

    Few days after the Union Law Minister criticised the collegium system as "opaque" and "unaccountable", the Supreme Court passed an order recording disapproval of the Centre delaying judicial appointments, especially by sitting over names which have been reiterated by the Collegium.

    In what could be perceived by many as a reply to the Law Minister's tirade, the Court asserted that the Collegium system has checks and balances. The Court noted in the order that there is an elaborate procedure for judicial appointments, which involves the Collegium taking inputs from the Government.

    "In the elaborate procedure from taking inputs from the Government post recommendation from the collegium of the High Court, the Supreme Court Collegium bestowing consideration on the names, there are enough checks and balances", the order passed by a bench comprising Justices Sanjay Kishan Kaul and AS Oka stated.

    The bench was considering a contempt petition filed by the Advocates Association Bengaluru in 2021 against the Centre not approving 11 names reiterated by the Supreme Court collegium. The Association contended 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.
    The Court expressed consternation at the fact that the time-line set by the Court has been breached by the Government.
    "It does appear that directions in terms of the order are being observed in breach on many occasions".
    The Court noted that there are 11 names cleared by the Collegium which are awaiting appointments. The oldest case is pending from 04.09.2021.
    "This implies that the Government neither appoints the persons and nor communicates its reservation, if any, on the names".

    The Court noted that there are 10 other names, which were reiterated by the Collegium, which are pending with the Government, the oldest one being of September 2021. As per the law laid down by the Supreme Court, once there is a reiteration, the Government has to make the appointment.

    "...once the Government has expressed its reservation and that has been dealt with by the Collegium, post second reiteration, only the appointment has to take place. Thus keeping the names pending is something 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 Court added.

    The Court expressed the concern that if the appointment process is delayed, it will discourage competent persons from accepting the proposal for judgeship. This will deprive the system of the services of eminent persons.

    "With the expanding opportunities to prominent lawyers, it is as it is a challenge to persuade persons of eminence to be invited to the Bench. On top of that if the process takes ages, there is a further discouragement to them to accept the invitation and this is undoubtedly weighing with the members of the Bar in accepting the invitation to adorn the Bench", the Court observed.

    One of the instances cited in the petition is that of Senior Advocate Aditya Sondhi, whose elevation to the Karnataka High Court was reiterated in September 2021. In February 2022, Sondhi withdrew his consent for judgeship as no approval regarding his appointment was forthcoming.
    The petitioner, represented by Advocate Amit Pai, further informed that Advocate Jaytosh Majumdar, whose name for elevation to the Calcutta High Court was reiterated in September 2021, passed away recently.
    Senior Advocate Vikas Singh, representing the Supreme Court Bar Association, mentioned that the recommendation for the elevation of Bombay High Court Chief Justice Dipankar Dutta to the Supreme Court has not been acted upon by the Centre for the past 5 weeks.
    "We are really unable to understand or appreciate such delays", the Court observed while issuing notice to Secretary (Justice) and Additional Secretary (Administration and Appointment) of the Ministry of Law and Justice, Government of India. The case will be next heard on November 28.

    Case Title: The Advocates' Association Bengaluru v. Shri Barun Mitra, Secretary (Justice)

    Citation : 2022 LiveLaw (SC) 949

    For Parties : Mr. Pai Amit, AOR (For Petitioner in the C.P.) High Court Mr. Arvind P Datar, sr. Adv. of Orissa Mr. Sibo Sankar Mishra, AOR Mr. Umakant Misra, Adv. Mr. Niranjan Sahu, Adv. Mr. Rajesh Kumar Nayak, Adv. SCBA Mr. Vikas Singh, Sr. Adv

    Headnotes

    Summary - Supreme Court makes critical remarks against the Union Government over delay in clearing names reiterated by the Collegium

    Judicial Appointments- Once the Government has expressed its reservation and that has been dealt with by the Collegium, post second reiteration, only the appointment has to take place. Thus keeping the names pending is something not acceptable.

    Judicial Appointments- Supreme Court criticises Centre keeping the recommendations pending - 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.

    Judicial Appointment- Supreme Court issues notice to the Secretary (Justice) and the current Additional Secretary (Administration and Appointment) over delays in clearing collegium reiterations

    Judges Appointment - Delays in appointment will discourage competent lawyers in opting for judgeship - With the expanding opportunities to prominent lawyers, it is as it is a challenge to persuade persons of eminence to be invited to the Bench. On top of that if the process takes ages, there is a further discouragement to them to accept the invitation and this is undoubtedly weighing with the members of the Bar in accepting the invitation to adorn the Bench-unless the Bench is adorned by competent lawyers very concept of Rule of Law and Justice suffers

    Click here to read/download the order




    Tags
    Collegium System#Justice Sanjay Kishan KaulJustice Abhay Sreeniwas OkaUnion Law Minister Kiren RijijuThe Advocates
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