Judges' Appointments : Supreme Court Agrees To Hear Plea Against Centre Withholding Names Reiterated By Collegium

Advocate, Mr. Prashant Bhushan appearing before a Bench comprising the Chief Justice of India, D.Y. Chandrachud, Justice Hima Kohli and Justice J.B. Pardiwala mentioned the matter for urgent listing. He submitted -

"Matter relating to judicial appointments that has been pending for long. The thing is that once there is unanimous recommendation, you have to issue notification. But they've (Centre) not issued it."

The CJI assured him that it would be taken on Board. He added -

" I will pass orders on the administrative side."

The petition, filed through Advocate Prashant Bhushan, drawn by Advocate Cheryl D'Souza and settled by Senior Advocate Dushyant Dave, also seeks notification of appointment of those whose recommendations has been pending with the government for more than six weeks.

It may be recalled that two weeks back, a bench led by Justice SK Kaul had criticized the Central Government for delaying the appointments of names which have been reiterated by the Collegium.

The petition alleges that the Centre's act of not notifying the names that have either been recommended more than six weeks back or have already been reiterated by the collegium is violative of the Supreme Court verdict in the case of Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case), the principles of which were reiterated in Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.

It has been settled in these cases that if the Supreme Court Collegium sends its recommendations to the union government, the government may send the name back for reconsideration by the Collegium. However, if the collegium reiterates its recommendation unanimously, the President is bound to issue the warrant of appointment.

The petition points out six cases wherein the Centre has not notified certain appointments despite the fact that the collegium has reiterated their names for judgeship. Notably, it relies on a LiveLaw report titled, "Exclusive: Judges Appointments – A Ping Pong Game? Is indefinite sitting over the files choking the judicial system?", wherein LiveLaw had collected data to expose the sad state of affairs in terms of judicial appointments.

The petition also points out that the second judges' case had held that the government must convey its opinion on a recommendation to the collegium within a period of six weeks from the receipt of such recommendation. Relying on the LiveLaw report, it then submits, "It has been reported in livelaw.in, this indefinite sitting over the files sent by the collegium has been choking the judicial system. Despite the large number of judicial vacancies and the huge pendency of cases in the various High Courts, the government is arbitrarily delaying the appointment process. The LiveLaw report states that "a staggeringly high number of more than 143 names are pending for judicial appointments. Most of such names are pending at the government level, after clearance by the Supreme Court Collegium."

Thereafter, highlighting the growing vacancies and pendency of cases, it submits that the "stonewalling of judicial appointments by the executive for oblique and vested interests, amounts to interference in the due process of law and the independence and integrity of the judiciary".

The government's inaction in notifying such appointments, it asserts, infringes on the independence of the judiciary and thus, violates Article 14 and 21 of the Constitution. It finally demands, "Thus executive interference and in this case non performance of its mandate in the judicial appointment process, has led to a virtual stalemate in the process of appointments to the Hon'ble Supreme Court of India and various High Courts. This trend has resulted in a serious negation of the rule of law and the independence of the judiciary.

The petitioner thus prays for a direction from this Hon'ble Court to the government, to notify the appointments to the High Courts and this Hon'ble Court, which have already been reiterated by the collegium, as well as the appointments of those names, which have been lying before the government without any response for more than 6 weeks since recommendations were received from the Collegium."