Judges Appointments | Timelines Will Be Followed, Pending Collegium Recommendations Will Be Cleared Soon : Centre Assures Supreme Court

Signalling a dial down on the confrontation with the Supreme Court over judges appointments, the Central Government on Friday assured the Court that the timelines on judicial appointments will be followed and the pending collegium recommendations will be cleared soon.

"All efforts are being made to conform to the timelines(as laid down by the Supreme Court)", Attorney General for India R Venkataramani told a bench comprising Justices Sanjay Kishan Kaul and Abhay S Oka. 

The AG informed the bench that 104 recommendations from High Court collegiums are pending with the Central Government and out of them 44 will be processed soon and forwarded to the Supreme Court collegium by tomorrow and the rest of it also will be processed soon.

"I am personally looking into it, not the names but the process", the AG assured the bench.

The bench enquired about the status of 10 recommendations made by the Supreme Court collegium which are pending with the Centre. Two of those recommendations are quite old, pending since October 2021 and the others were made in November 2022, the bench pointed out.

The AG assured that all these collegium recommendations for the Rajasthan High Court will be cleared soon.

Status of 5 names recommended for elevation to the Supreme Court

Next, the bench enquired about the status of 5 names which were recommended by the Supreme Court collegium in December 2022 for elevation to the Supreme Court.

Regarding this, the AG made a request for deferment.

"Would your lordships defer this for a little while? I have some inputs, but I may have some difference of opinion. I don't think I should probably discuss it here", AG said.

"We will defer. But things should not take time. They are already existing Chief Justices or senior High Court judges", Justice Kaul said.

"In so far as pending 5 recommendation to this Court is concerned, learned Attorney General requests for deferment as he is personally looking into it", the bench recorded in the order.

Proposals for appointment of 3 Chief Justices

Next, the bench enquired about the status of recommendation made by the Supreme Court collegium in December 2022 for the appointment of Chief Justices to the High Courts of Jharkhand, Gauhati and Jammu and Kashmir and Ladakh.

Based on the assurance made by the AG, the bench recorded in the order : "In so far as recommendations of 3 Chief Justices are concerned, learned AG said he is looking into it. We have impressed on the learned AG that there will be vacancies of Chief Justices which will arise on account of elevations to the Supreme Court and those cannot be processed till the elevations takes place, which is matter of concern".

Bench expresses concern about proposals of transfer of judges remaining pending

The bench also flagged the issue of the ten recommendations made by the Collegium regarding transfer of High Court judges remaining pending.

"Ten recommendations for transfer have been made. These have been made in the end of September and end of November. In that the government has very limited role. Keeping them pending sends a very wrong signal. It is unacceptable to the collegium", Justice Kaul orally said.

Justice Kaul commented that such delay gives rise to an impression of 'third party interference'. It may be noted that the bar associations of the High Courts of Gujarat, Telangana and Madras had launched protests against some transfer proposals.

The bench recorded in the order as follows :

"Last aspect which we want to deal with, and currently is of considerable importance, is the recommendations made for transfer of High Court judges made by the collegium, numbering 10. Two of them were sent at the end of September 2022, and eight were sent at the end of November 2022. The transfer of High Court judges is done in the interest of administration of justice and exceptions apart, there is no reason for any delay on the party of the government in implementing the same. The Collegium consults and seeks opinion of the judges and also the Chief Justices of the High Courts from where the transfer is being made and where to the transfer is made. Comments of the judges transferred are also obtained. At times, at the request of the judge concerned, alternative courts are also assigned for transfer. This process is completed before a recommendation is made to the government.  Delay in the same, not only affects the administration of judges, but also creates an impression of third party sources interfering on behalf of these judges with the government".

Transferred judge does not go to the other HC as a 'bar judge' or 'service judge'

The bench pointed out that when a judge is transferred, the said judge goes to the High Court as a transferred judge and it should be left to the Chief Justice of the High Court to categorize the vacancies.

The bench dictated the following order: 

"It should be appreciated that in every High Court there is a sanctioned strength of judges. 2/3rd of the judges are from the bar and 1/3rd from the service. If a judge is transferred from a court, it is not as if a replacement can be provided from the bar or service from that court, as the total strength of a court is specified. When a judge is transferred to another court, he is a transferred judge -neither categorized from the bar nor from service. In the Court where he is transferred, he occuppies a physical position in the strength of that court and unless correspondingly judges are transferred from that court, there will be lesser persons appointed from bar/service, as the total strength of the court to which the transfer has been made cannot be exceeded. The transferred judge does not carry the label of a bar or a service judge. And it is up to the Chief Justice of Court where to he is transferred to reduce the inflow in the Court of transfer, ie from the bar or the service. Similarly, if from the Court where to judges are transferred, in turn judges from other category are transferred to other courts, they in turn carry the label of a transferred judge and not from the bar or from service. This aspect has been clarified as there has been some doubts expressed as to how the system of transfer will operate".

Justice Kaul orally explained the order as follows : "Let us say, from one court, 3 bar judges are transferred to another court. In the Court where they go to, they occupy the position of a transferred judge, which means that if no judge is being transferred out from there, there will be three less local judges. It is not as if three bar judges are transferred and three bar judges become less. No. It can be either from the bar or from the service depending on the Chief Justice. The Ministry is at times issuing letters on the presumption as if three bar judges are transferred there, three bar vacancies will be gone. No, that is not the way it operates. They may be from the bar or service, it is up to the Chief Justice. This is creating impediments in recommendations from some courts".

"If a judge goes to another court, he does not carry the label of a service judge or bar judge. Consequently, where he goes, there will be naturally reduction in the number of people who can be elevated. Whether it should be reduced from bar or service, it is the Chief Justice's wisdom", Justice Kaul added.

On names returned

The bench also pointed out that 22 names were returned by the Centre recently, and some of those names were earlier reiterated by the collegium. Some names were reiterated by the collegium three times, despite which the Centre returned them. However, on this aspect, the bench did not pass any order, saying that it is for the Collegium to decide the future course of action regarding the names returned.

Advocate Prashant Bhushan 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", Justice Kaul replied.

"I see it as a way that Centre waits for collegium to change composition and then send back reiterations, hoping that it will be re-considered. it should not become a method. This should not become a way for the government to stymie a unanimous resolution. This will set a very bad precedent", Bhushan said.

"Actually, after the reiteration, a new collegium should not consider", added Senior Advocate Vikas Singh.

"These are very extraneous statements, grave allegations.. more you push these aspects....", AG took objection.

"Let the collegium decide", Justice Kaul said adding that the Attorney General has also agreed that it cannot be an "endless ping-pong game".

The bench also repeated its concern -which was expressed on the previous hearing as well- about meritorious lawyers expressing hesitancy to accept offer for judgeship due to delay in appointments. 

Justice Kaul told the AG : "Even when Mr. Venugopal would appear I would say to him that you are bhishmapitamah of the bar and he used to push things. You occupy the position today. You have to advise the government to follow the law of the land.. I hope you will carry out the duty judiciously...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. I may be out of the system in a year, but my concern is that are we creating a system where meritorious people are refraining from coming. I have seen it personally".

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

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".

Advocate Amit Pai appeared for the petitioner Advocates Association of Bengaluru. Senior Advocate Vikas Singh, President of the Supreme Court Bar Association, also appeared in the matter,

Background

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.

On November 28, the Court had expressed dismay over the Law Ministers' comments against the collegium system. The Court had also urged the Attorney General and the Solicitor General to advise the Centre to follow the law laid down by the Court regarding judicial appointments. The Court reminded that names reiterated by the Collegium are binding on the Centre and that the timelines laid down for completing the appointment process are being breached by the executive.

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