Judicial Appointments :Three Names Reiterated During CJI Gogoi's Tenure Still Pending With Centre

"Appointments are happening! As the Chief Justice, I am telling you that whatever is pending is pending before the Supreme Court collegium. There are almost 70-80 proposals before the Collegium and hardly 27 before the government", Chief Justice Ranjan Gogoi had said, while hearing a PIL seeking directions to fill up judicial vacancies.

The PIL by NGO Common Cause sought a direction that the names reiterated by SC collegium must be notified by Cent within 6 weeks. This prayer in the PIL is based on the principle in the 'Second Judges Case' that a name reiterated by the SC Collegium for judicial appointment is binding on the centre. 

Despite the strong words by CJI Gogoi, three names reiterated by SC collegium during his tenure have not been yet accepted by the Centre.

The following are those names.

Amit Negi, Allahabad HC

Amit Negi's recommendation for elevation as judge of Allahabad HC was reiterated on December 4, 2018.

The Collegium resolution noted that Advocate Negi was recommended for elevation way back in in November, 2016. The proposal was, however, withheld by the Collegium in June, 2017, in light of certain inputs from CJ of Allahabad HC. Thereafter, the collegium under former CJI Deepak Misra had resolved to revive its earlier recommendation to elevate Advocate Negi to the Bench in August 2018. This recommendation was, however, referred back by the government to the CJI, for reconsideration.

Reiterating its proposal, the Collegium resolved, "The Collegium accordingly reiterates its recommendation dated 30th August, 2016, which was revived on 1st August, 2018, for appointment of Shri Amit Negi, Advocate as a Judge of the Allahabad High Court. The above proposal needs to be processed expeditiously."

No action has taken place on the reiteration made in December 2018.

Sandipan Ganguly, Calcutta HC

Advocate Sandipan Ganguly's proposal for elevation to Calcutta HC was reiterated by SC collegium on January 16 this year.

Advocate Ganguly had first been recommended on September 11, 2018, along with three Judicial Officers. His candidature was, however, referred back by the Department of Justice to the Chief Justice of India for reconsideration.

Rejecting the objections raised by the Centre, the Collegium, however, reiterated the proposal, resolving, "Since the Collegium does not find any fresh material in the file referred back to it for reconsideration of the above proposal, the Collegium is of the considered view that Shri Sandipan Ganguly deserves to be elevated to the High Court Bench. The Collegium accordingly reiterates its recommendation dated 11th September, 2018 for appointment of Shri Sandipan Ganguly, Advocate as a Judge of the Calcutta High Court."

P V Kunhikrishnan, Kerala HC

On February 12, the Collegium reiterated the proposal to elevate Advocate P V Kunhikrishnan as judge of High Court of Kerala.

The proposal in respect of P.V.Kunhikrishnan made on October 9,2018 was referred back by the Department of Justice to the Chief Justice of India for reconsideration in the light of the observations made in the file. The notification issued by Centre on November 1 split up the Collegium recommendation by accepting only the names of V G Arun, N Nageresh, T V Anil Kumar, and N Anil Kumar in omission of P V Kunhikrishnan.

The Collegium resolution of February 12 observed :

"As regards Shri P.V.Kunhikrishnan, we have carefully scrutinized the material placed on record including the reasons recorded in the file for seeking reconsideration of the proposal for his elevation. The Collegium while clearing his name on 9th October, 2018 has already considered material on the basis of which the proposal relating to Shri Kunhikrishnan has been referred back for reconsideration. As there is no fresh material in the file referred back to it for reconsideration of the above proposal, the Collegium is of the considered view that Shri P.V. Kunhikrishnan deserves to be elevated to the High Court Bench. The Collegium accordingly resolves to reiterate its recommendation dated 9 th October, 2018 for appointment of Shri P.V. Kunhikrishnan, Advocate as a Judge of the Kerala High Court"

Other reiterations made in 2018 during tenure of CJI Dipak Misra, which are pending.

Sanjay Kumar Medhi, Gauhati HC

On August 8 ,2018 the Supreme Court Collegium reiterated the recommendation for appointment of two Advocates— Sanjay Kumar Medhi and Nani Tagia— as judges of the Gauhati High Court. Though Nani Tagia was appointed judge of Gauhati HC last November, the file of Medhi is still pending.

C.Emalias, Madras HC 

The name of advocate C Emalias was reiterated by SC collegium on August 3, 2018. The original proposal made in December 2017 was sent by centre. Advocate Senthilkumar Ramamoorthy, whose name was also reiterated along with Emalias, was appointed judge of Madras High Court on February 18.

No consistent approach by Centre

It can be seen the 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); 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.

In January 2018, a lawyer from Gujarat HC - Megha Jani- withdrew her consent for judgeship. This was understandably due to centre selectively withholding approval to her proposal, while accepting three other names which were cleared by the collegium.

The petition by Common Cause stated that in many cases Centre was selectively withholding approval to certain appointments despite the fact that the Collegium has reiterated their names for judgeship. 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.

Since Collegium's reiteration is binding on the centre, its selective inaction in acting on the same can only be construed as a colourable exercise of power to scuttle judicial appointments.