Centre Has Sent Some Names To Collegium For Consideration For Appointment As Judges, Says Supreme Court

The Supreme Court on Friday disclosed that the Central Government has sent some names to the collegium for consideration for judges appointments, although such names were not earlier cleared by the collegium.

A bench comprising Justices Sanjay Kishan Kaul and Justice AS Oka was hearing a contempt petition filed against the Union Ministry of Law and Justice over delay in judicial appointments.

While hearing the matter, Justice Kaul informed that the Centre has returned 22 names which were recommended by the collegium for elevation as judges. While making this statement, Justice Kaul added that Centre has also forwarded certain names for collegium's consideration.

"Government in the last lot sent back some of the names which were pending. Rightly or wrongly, we will have to deal with it. There are 22 names which have been sent back. Out of that, some of the ones are which... recommended by the collegium have been sent back. Some reiterated names have been sent back. Some third reiterations have been sent back. And some names are which the collegium did not clear but the Government in its wisdom feels ought to be considered. So collegium will have to consider the views of the government whether those names, which we did not clear earlier, are now required to be cleared or not. The total of these three categories are pending today. The other pendency in collegium is minimal now", Justice Kaul said.

Although the bench criticised the Centre for sending back names which have been reiterated by the Collegium, it refrained from passing any orders on this aspect, saying that it is for the Collegium to decide the future course of action regarding the names returned.

When Advocate Prashant Bhushan highlighted that the Centre was sending back even names reiterated by the collegium, Justice Kaul said, "that is a matter of concern. But we have already flagged this in the last order. The Attorney has said he is looking into it". 

Justice Kaul remarked, "See, Government may have its own views.  But it can't be kept on hold without sending back the comments on it on the presumption that we may reiterate it. So what has to be done is that comments can be sent to us. We will look into the comments. We will see whether we want to the reiterate the name or drop it. If we reiterate, then there is nothing in the current scenario that can prevent the appointment".

The AG the replied, "Highest level of application of mind and objective consideration is involved from our side." 

Justice Kaul then told the AG : "Even when Mr. Venugopal would appear I would say to him that you are bhishmapitamah of the bar and he did try to push something. You occupy the position today. I have full faith that you will endeavour to see that the judgment of this Court is respected in its letter and spirit. We cannot pick and chose..If you want to bring in a better system, nothing prevents the legislature from doing so. Every system has pluses and minuses. No body is saying this is a perfect system..Nor will the replaced system be a perfect system. But until this is the law of the land, you have to follow it."

Justice Kaul further remarked, "This is not a healthy situation. I have said earlier also. I may be out of the system in a year, but my concern is that are we creating an environment where meritorious people feel hesitant in giving their consent. I have seen it personally...Delays deter people from giving consent." 

The AG responded by saying that a fusion between different points of view was needed. 

Justice Kaul further added, "You look at the statements made in the Parliament or otherwise. The court itself at times considers and drops few names. When you say that so many names the collegium drops, it shows there is scrutiny. We also look into several things, do complete scrutiny based on the views of several people and then decide to take a call. After that if you delay, it's a problem."

"A person is professionally affected. Therefore people hesitate", Justice Oka added. 

Justice Kaul further pointed out situations where lawyers have withdrawn their consent for being elevated to the bench because of the delays by the collegium and the government. Responding to this, the AG said, "These are some of the intractable situations. We need to figure out how to reduce these frictions."

Advocate Prashant Bhushan, pointing out the delay in approving names for appointments that have been reiterated several times by the collegium, said that centre sending back names reiterated by the collegium was becoming a "method".

Centre sending back reiterated names can't go indefinitely, the lawyer said. "Agree with you. That's a matter of concern and we have highlighted that even in the last order."

The bench adjourned the hearing till February 3, 2023, asking the AG, in a lighter vein, "to come back with a smile, with the warrant of appointments". 

[Case Title: Advocates Association Bengaluru v. Barun Mitra And Anr. Contempt Petition (C) No. 867/2021 in TP(C) No. 2419/2019]

Click here to read/download the order

Also from today's hearing : Judges Appointments | Timelines Will Be Followed, Pending Collegium Recommendations Will Be Cleared Soon : Centre Assures Supreme Court

Lawyer's Elevation As Judge Should Not Be Objected Merely On Basis Of View Expressed Or Case Conducted : Supreme Court Tells Centre