20 Nov 2023 7:51 AM GMT
The Supreme Court on Monday (November 20) questioned the central government over its delay in notifying the transfer of certain judges, most of them from the Gujarat High Court, even as it cleared the collegium's recommendation to transfer judges from other high courts. A bench comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was hearing a petition filed by the Advocates Association...
The Supreme Court on Monday (November 20) questioned the central government over its delay in notifying the transfer of certain judges, most of them from the Gujarat High Court, even as it cleared the collegium's recommendation to transfer judges from other high courts.
A 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.
On the last occasion, the bench orally deprecated the Centre's practice of 'segregating' collegium recommendations, which resulted in the inter-se seniority of judicial nominees being disturbed. The 'pick and choose' approach adopted by the central government in selectively accepting names from the collegium resolutions for judges' appointments should be stopped, the court said. 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 had warned.
Once again, during today's hearing, the top court remonstrated with the attorney-general over the 'selective' clearing of transfer proposals. Although the hearing was ultimately adjourned at the law officer's behest, Justice Kaul told him during the brief courtroom exchange -
"As per our information, you have issued transfer orders for five people, but not for six others - four of them are from Gujarat, one from Delhi, and one from Allahabad. This does not send a good signal. Don't do selective transfers. It creates its own dynamics. What signal do you send when out of the transfers recommended, four judges from Gujarat are not transferred at all? See, what will happen at some stage is that you can't let judges whom we think should not work in a court, continue to work there. This could mean something unpleasant...I don't want to say but you understand the consequence. If it comes to that, these judges will be embarrassed and their authority diluted. Please don't let that happen."
The judge also pointed out that out of the names recently recommended, eight candidates have not been appointed, even though some of them were senior to others whose names have been cleared by the government. "This is something on which we have commented earlier. If a candidate does not know what seniority they will have on becoming a judge, it becomes difficult to persuade eligible and deserving candidates to accept the position," Justice Kaul exclaimed. He also urged the government to not add to the backlog of unnotified recommendations, saying, "We are trying to solve the past problem here. This affects the system."
Other than this, Justice Kaul pointed out that the central government had not sent its response to five names suggested by the Supreme Court collegium. With respect to five others, no step has been taken by the Centre despite the recommendations being reiterated once or more. Furthermore, three candidates whose names were recommended in the month of July have not yet been sent with inputs to the top court's collegium, Justice Kaul revealed. "I'm flagging these because the timeline has elapsed."
Before adjourning the hearing, the bench also expressed its appreciation for the recent decision of the Gauhati High Court to defer the swearing-in ceremony of a senior advocate whose name was cleared for judgeship by the Centre, even as another candidate whose name was placed first in an October 17 collegium recommendation of the Supreme Court was overlooked. Within two days of the high court issuing a public notice deferring the oath ceremony, the central government notified the appointment of the more senior candidate as well. Justice Kaul pronounced -
"The learned attorney requests the matter to be taken up after some time and ensures that this court will not be disappointed looking at the effort he is making. List on December 5. We may record that in Gauhati, one of the senior candidates, a designated senior advocate, was in the first instance not cleared. This was taken up on a very serious note and ultimately, the oath to the other was delayed for some time to facilitate the government to issue warrant of appointment of the said person. We appreciate stand taken in this behalf by the collegium and the consequent action taken by the government."
In September, the court reiterated its apprehensions to AG 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.
Although the court commended the 'positive developments' with respect to judicial appointments 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 reiterated its concerns about the segregation of names and the pendency of certain collegium proposals. Despite a promising start, the progress seemed to have slowed down, the bench noted with dismay during the last hearing, as it called on the attorney-general to "show some progress".
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 2022, 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.
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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