Govt Sitting On Collegium Recommendations Without Decision Not A Democratic Process Or Healthy Practice : Justice Chelameswar

Former Supreme Court judge, Justice J Chelameswar recently criticized the practice of Central Government sitting over recommendations for judicial appointment as "not a democratic process nor a healthy practice"."If the Government has concrete and legally tenable material to object to a recommendation, they have a right to object and discuss with the Chief Justice. But simply not deciding anything – sitting on the matter, without clearing the recommendation, is certainly not a democratic process nor is it a healthy practice", he said.He was speaking at a webinar on the topic "Accountability & Transparency in Judicial Appointments: Need for Institutional Mechanisms" as part of Kannabiran Memorial Lecture series.Justice Chelameswar said that the book 'The Informal Constitution' by Abhinav Chandrachud gives such specific instances of government sitting over collegium recommendations. "There is recorded evidence in that book regarding the abuse of power by the political executive prior to the Second Judges case. Government sat on the recommendations made by the CJs, government delayed the appointment process because the suggestions made by the CJs of a High Court or the Supreme Court was not to their liking". "Certainly, if the Government has concrete and legally tenable material to object to a recommendation, they have a right to object and discuss with the CJ. But simply not deciding anything – sitting on the matter, without clearing the recommendation, is certainly not a democratic process nor is it a healthy practice. Such things happen. "The Informal Constitution" gives specific instances. I remember particularly a case in Madhya Pradesh where the name of a particular Additional judge was recommended on three occasions by the CJ concerned for permanent appointment. Every time, the Government of India issued orders extending the tenure of additional judgeship", he added.Centre's Selective Delay On Collegium Reiterations Makes Out A Case For Fixing A Timeline For DecisionIn 2019, the Gujarat High Court Advocates Association filed a writ petition in the Supreme Court saying that the Centre was selectively withholding approval for the proposal to elevate Justice AK Kureshi as he had given certain decisions unfavorable to the establishment while being a judge of the Gujarat High Court. The GHCAA had pointed that though the Centre had cleared the other recommendations made on the same day, it was sitting over the proposal regarding Justice Kureshi. After several postings of the petition in the Supreme Court, the Ministry accepted the proposal for Justice Kureshi's elevation, but with a modification that he be made the Chief Justice of the Tripura High Court instead of the Madhya Pradesh High Court as had been originally suggested by the Supreme Court Collegium. The Collegium did not object to this modification sought by the Centre.Justice Kureshi Saga : Death Knell For Independence Of JudiciaryIn 2019, a division bench of the Supreme Court comprising Justices Sanjay Kishan Kaul and K M Joseph had also expressed alarm over the increase in vacancies of High Court judges- nearly 40%. Later, the same bench ordered in December 2019 that the Government must appoint the recommendees approved by SC collegium within six months. Sitting Over Judicial Appointments New Weapon In Executive's Arsenal : Gopal SubramaniumInstances of collegium failure mentioned Justice Chelameswar further said that his dissent in the NJAC case mentioned instances "when the collegium did not exercise the authority strictly in accordance with the demands of the Constitution"."Post the Second Judges case, when the collegium had much greater say in the appointment process of the members of the constitutional courts, there are instances when the collegium did not exercise the authority strictly in accordance with the demands of the Constitution – letter and spirit of the constitution, as explained by the judgment of Supreme Court in the Second Judges case. I've recorded in my dissenting judgment, at least two such instances. It is not that there were just two, there were more and recorded too. My idea was not to create a controversy", he said during the lecture.Those instances mentioned in the NJAC dissent by Justice Chelameswar are the events which led to the decisions reported in Shanti Bhushan &Another v. Union of India & Another, (2009) 1 SCC 657, P.D.Dinakaran (1) v. Judges Inquiry Committee & Others, (2011) 8SCC 380, P.D. Dinakaran (2) v. Judges Inquiry Committee &Another, (2011) 8 SCC 474.The dispute in Shanti Bhushan case (supra) was regarding appointment of a permanent Judge to the Madras High Court. The allegation appears to be that the procedure indicated in the Second and Third Judges cases had not been followed."..the content of para 22 of the judgment (in Shanti Bhushan case) leaves me with an uncomfortable feeling that there was some departure from the law perhaps under some political pressure", Justice Chelameswar ...

Govt Sitting On Collegium Recommendations Without Decision Not A Democratic Process Or Healthy Practice : Justice Chelameswar

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