'Four Gujarat Judges Not Transferred' : Supreme Court Disapproves Of Centre's Selective Notification Of HC Judges Transfers

A bench comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia 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.

On the last occasion, the bench orally deprecated the Centre's practice of 'segregating' collegium recommendations, which resulted in the inter-se seniority of judicial nominees being disturbed. The 'pick and choose' approach adopted by the central government in selectively accepting names from the collegium resolutions for judges' appointments should be stopped, the court said. It also conveyed its concerns to the Attorney General for India R Venkataramani over the pendency of certain proposals made by the collegium for the transfer of high court judges. "The transfers must be notified, otherwise, it creates an anomaly in the system. Once a judge has been appointed, where they perform their judicial function is a matter of no concern to the government. Tomorrow, the collegium can collectively advise to not assign judicial work to a particular bench. Don't make us take this step, but it is not beyond our powers to do it. This is not an off-hand remark, but something I have discussed with the collegium," the Court had warned.

Once again, during today's hearing, the top court remonstrated with the attorney-general over the 'selective' clearing of transfer proposals. Although the hearing was ultimately adjourned at the law officer's behest, Justice Kaul told him during the brief courtroom exchange -

"As per our information, you have issued transfer orders for five people, but not for six others - four of them are from Gujarat, one from Delhi, and one from Allahabad. This does not send a good signal. Don't do selective transfers. It creates its own dynamics. What signal do you send when out of the transfers recommended, four judges from Gujarat are not transferred at all? See, what will happen at some stage is that you can't let judges whom we think should not work in a court, continue to work there. This could mean something unpleasant...I don't want to say but you understand the consequence. If it comes to that, these judges will be embarrassed and their authority diluted. Please don't let that happen."

The judge also pointed out that out of the names recently recommended, eight candidates have not been appointed, even though some of them were senior to others whose names have been cleared by the government. "This is something on which we have commented earlier. If a candidate does not know what seniority they will have on becoming a judge, it becomes difficult to persuade eligible and deserving candidates to accept the position," Justice Kaul exclaimed. He also urged the government to not add to the backlog of unnotified recommendations, saying, "We are trying to solve the past problem here. This affects the system."

Other than this, Justice Kaul pointed out that the central government had not sent its response to five names suggested by the Supreme Court collegium. With respect to five others, no step has been taken by the Centre despite the recommendations being reiterated once or more. Furthermore, three candidates whose names were recommended in the month of July have not yet been sent with inputs to the top court's collegium, Justice Kaul revealed. "I'm flagging these because the timeline has elapsed."

Before adjourning the hearing, the bench also expressed its appreciation for the recent decision of the Gauhati High Court to defer the swearing-in ceremony of a senior advocate whose name was cleared for judgeship by the Centre, even as another candidate whose name was placed first in an October 17 collegium recommendation of the Supreme Court was overlooked. Within two days of the high court issuing a public notice deferring the oath ceremony, the central government notified the appointment of the more senior candidate as well. Justice Kaul pronounced -

"The learned attorney requests the matter to be taken up after some time and ensures that this court will not be disappointed looking at the effort he is making. List on December 5. We may record that in Gauhati, one of the senior candidates, a designated senior advocate, was in the first instance not cleared. This was taken up on a very serious note and ultimately, the oath to the other was delayed for some time to facilitate the government to issue warrant of appointment of the said person. We appreciate stand taken in this behalf by the collegium and the consequent action taken by the government."

In September, the court reiterated its apprehensions to AG Venkataramani over the government's delay in clearing the names or notifying the recommendations, pointing out that seventy recommendations made by high court collegiums since November 11, 2022, were pending with the Centre. The bench also stressed that seven names reiterated by the Supreme Court collegium, nine names proposed for the first time, one chief justice promotion, and 26 transfer proposals were still pending. Almost all of the 70 recommendations made by the high courts were forwarded to the Supreme Court and some headway was made with respect to the other pendencies, it was revealed during the next hearing in October.

Although the court commended the 'positive developments' with respect to judicial appointments in view of the slew of appointments and transfers of high court judges notified by the central government after the apex court's rebuke, at the same time, the bench reiterated its concerns about the segregation of names and the pendency of certain collegium proposals. Despite a promising start, the progress seemed to have slowed down, the bench noted with dismay during the last hearing, as it called on the attorney-general to "show some progress".