Supreme Court Takes Note Of 'Positive Development' In Centre Clearing Some Collegium Proposals, Repeats Concerns About Pending Files
The Supreme Court on Friday (October 20) took note of some "positive developments" in judicial appointments, as the Centre has notified a slew of appointments and transfers of High Court judges over the last two weeks.At the same time, the Court reiterated its concerns about the segregation of names and the pendency of certain collegium proposals. A bench comprising Justices Sanjay Kishan...
The Supreme Court on Friday (October 20) took note of some "positive developments" in judicial appointments, as the Centre has notified a slew of appointments and transfers of High Court judges over the last two weeks.
At the same time, the Court reiterated its concerns about the segregation of names and the pendency of certain collegium proposals.
A bench comprising Justices Sanjay Kishan Kaul, Sudhanshu Dhulia, and Manoj Misra 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.
It may be recalled that on the last occasion, it was revealed that almost all of the 70 recommendations made by various High court collegiums had been forwarded by the Centre after the court's rebuke.
During the hearing today, Justice Kaul told Additional Solicitor General of India Balbir Singh that when the Centre splits up a single collegium resolution to pick some names and omit others, it will disrupt the seniority.
"When you appoint someone and don't appoint someone else- the whole concept of seniority gets disturbed."
He further added that the issue also arose in some transfer proposals, where some judges were transferred upon the recommendations and some were not. He said–
"Appointments are consultative process. Transfers are for already who are judges...there is wisdom of five senior judges in these transfers..."
ASG Balbir Singh, appearing for the Union in the matter sought additional time to apprise the bench with the progress made by the Union in clearing the recommendations of the collegiums. Justice Kaul added–
"Some of them- I don't think there are serious issues for the government to not consider them... Suppose there are four names, you notify three and hold back on one. The idea is that this shouldn't happen. Some people have accepted, some have withdrawn out of frustration. We have lost on a lot of good names. This reduces incentive for people to join the bench..."
At this juncture, Senior Advocate Dushyant Dave remarked that many young lawyers were no longer interested in being promoted to the bench due to inordinate delay in clearing of names by the Union.
Noting that as the matter stood now, there were 5 reiterated names pending, 5 fresh names pending, and 11 transfers pending, Justice Kaul ordered–
"ASG assures that the matters are being sorted out. At his request, list on 7 November."
While concluding the matter, Justice Kaul also remarked–
"Some of the names cleared recently have been appointed within a span of weeks - that's a positive development. I know in Delhi they notified - they cleared two week ago only. The current process is going well but we have to unstuck the stuck."
Background
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, 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.
Case Title: Advocates Association Bengaluru v. Barun Mitra And Anr. | Contempt Petition (Civil) No. 867 of 2021 in Transfer Petition (Civil) No. 2419 of 2019