Centre Withholding Names Reiterated By Collegium Unacceptable : Supreme Court Issues Notice To Secretary(Justice) Over Delay In Judicial Appointments

The Supreme Court on Friday issued notice to the Secretary(Justice), Government of India and Additional Secretary (Administration and Appointment) on a petition filed over the delay in clearing the names approved by the Collegium for appointment as judges.

While considering the matter, a bench comprising Justices Sanjay Kishan Kaul and Abhay Sreeniwas Oka made strong critical remarks against the Centre withholding the names approved by the Collegium.

The bench was considering a contempt petition filed by the Advocates Association Bengaluru in 2021 against the Centre not approving 11 names reiterated by the Supreme Court collegium. The Association contended that the Centre's conduct is in gross violation of the directions in PLR Projects Ltd v. Mahanadi Coalfields Pvt Ltd wherein the Supreme Court directed that names reiterated by the Collegium must be cleared by the Centre within 3 to 4 weeks.

The bench observed that in the cases of 11 names which have been reiterated by the collegium, the Centre has kept the files pending, without giving either approval or returning them stating reservations, and such practice of withholding approval is "unacceptable".

"If we look at the position of pending cases for consideration, there are 11 cases pending with the Government which were cleared by the Collegium and yet are awaiting appointments. The oldest of them is of vintage 04.09.2021 as the date of dispatch and the last two on 13.09.2022. This implies that the Government neither appoints the persons and nor communicates its reservation, if any, on the names.", the bench observed in the order.

The bench stated that delay in clearing the names can lead to the recommended persons withdrawing their consent for judgeship and this can deprive the system of eminent persons.

"Keeping names pending is not acceptable. We find the method of keeping the names on hold whether duly recommended or reiterated is becoming some sort of a device to compel these persons to withdraw their names as has happened.", the bench noted in the order.  One of the instances cited in the petition is that of Senior Advocate Aditya Sondhi, whose elevation to the Karnataka High Court was reiterated in September 2021. In February 2022, Sondhi withdrew his consent for judgeship as no approval regarding his appointment was forthcoming.

Appointment has to follow after second reiteration by the Collegium

The Court stressed that after second reiteration, the only option before the Centre is to issue the appointment order. In some cases, the Centre sought reconsideration. But despite a second reiteration, the government did not clear the names and the persons withdrew their names and the Court lost the opportunity to have an eminent person on the Bench.

The bench clarified that it is issuing a "simple notice" to the Secretary(Justice).  The bench noted in the order that one of the names reiterated, Jaytosh Majumdar, for Calcutta High Court passed away.

Senior Advocate Vikas Singh, appearing for the Supreme Court Bar Association, pointed out that the Centre has not yet acted upon the recommendation regarding the elevation of Chief Justice Dipankar Dutta to the Supreme Court for the past 5 weeks.

Advocate Amit Pai appeared for the petitioner association.

"With the expanding opportunities to prominent lawyers, it is as it is a challenge to persuade persons of eminence to be invited to the Bench. On top of that if the process takes ages, there is a further discouragement to them to accept the invitation and this is undoubtedly weighing with the members of the Bar in accepting the invitation to adorn the Bench" - SC observes in the order.

Recently, the Union Law Minister Kiren Rijiju had made sharp remarks against the collegium system calling it "opaque".  The Minister added that it is the job of the Government to appoint judges.

The following eleven names were specifically highlighted in the petition,

Case Title: The Advocates' Association Bengaluru v. Shri Barun Mitra, Secretary (Justice)

Citation : 2022 LiveLaw (SC) 949

Headnotes

Summary - Supreme Court makes critical remarks against the Union Government over delay in clearing names reiterated by the Collegium

Judicial Appointments- Once the Government has expressed its reservation and that has been dealt with by the Collegium, post second reiteration, only the appointment has to take place. Thus keeping the names pending is something not acceptable.

Judicial Appointments- Supreme Court criticises Centre keeping the recommendations pending - We find the method of keeping the names on hold whether duly recommended or reiterated is becoming some sort of a device to compel these persons to withdraw their names as has happened. 

Judicial Appointment-  Supreme Court issues notice to the Secretary (Justice) and the current Additional Secretary (Administration and Appointment) over delays in clearing collegium reiterations

Judges Appointment - Delays in appointment will discourage competent lawyers in opting for judgeship - With the expanding opportunities to prominent lawyers, it is as it is a challenge to persuade persons of eminence to be invited to the Bench. On top of that if the process takes ages, there is a further discouragement to them to accept the invitation and this is undoubtedly weighing with the members of the Bar in accepting the invitation to adorn the Bench-unless the Bench is adorned by competent lawyers very concept of Rule of Law and Justice suffers

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