Tell Us Why Candidates Reiterated By Collegium Aren't Appointed As Judges : Supreme Court Asks Attorney General

The Supreme Court on Friday (September 20) asked the Attorney General for India to give a tabulated chart of the candidates whose names have been reiterated by the Supreme Court Collegium for appointment as judges and give the reasons for not clearing those appointments.

As per the judgment in the Second Judges Case, Collegium reiterations are binding on the Union Government. However, several reiterated names have been pending with the Centre for months.

A bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Manoj Misra was hearing a PIL seeking directions to the Centre to clear the collegium resolutions in a time-bound manner. A contempt petition filed by the State of Jharkhand against the Centre over the delay in appointing the Chief Justice of the Jharkhand High Court was also listed today.  AG R Venkataramani, appearing virtually, requested for adjournment.

The bench agreed to adjourn the matter by a week, telling Senior Advocate Kapil Sibal (appearing for Jharkhand) that the appointments of the Chief Justices are likely to happen in the meantime. "Some appointments are in the pipeline, we expect those appointments to come shortly," CJI said.

At this point, Advocate Prashant Bhushan mentioned a petition filed by Common Cause in 2018 seeking a timeline for judicial appointments. He submitted that several reiterated names are pending with the Government and cited the example of Senior Advocate Saurabh Kirpal, whose appointment as Delhi HC Judge was reiterated by the Collegium in January 2023.

CJI then told the AG:

"If you can prepare a chart for us, a tabulated chart of the cases which have been reiterated by the collegium, and what's the difficulty in notifying those names. So please tell us, you can give us a chart of which are the names which have been reiterated by the collegium and why they are pending and at what level they are pending."

AG, though agreed to give a chart, expressed doubts about the extent to which the Court can intervene in this matter.

"There is no difficulty in that. But every such case brings in its own such element..some dispute here..somebody says why is it not done....so I don't know to what extent the Court may enter into the deliberations on that.." AG said.

"You tell us the reasons why those appointments are being not done," CJI said.

"It's easy for our learned friend to come and say why it's not being done but your lordships knows better," AG said. Sibal then said that in December, the recommendation regarding the appointment of Justice Sarangi as the CJ of Jharkhand HC was made but he got only one month in office since his appointment was delayed.

"Mr. Attorney General, tell us which are the matters which have been reiterated, which are pending and why are they pending. Give us a tabulated chart. We will then deal with it," CJI reiterated.

Bhushan then highlighted that the Government has not responded on some recommendations for six weeks and that the prayer in the writ petition was that if there is no response within a certain time, then the recommendation is deemed to have been accepted. "Otherwise, they can frustrate the recommendations of the collegium by just sitting on them, without responding."

AG said that he would give the chart but added that he would also put in objections to the maintainability of the writ petitions. Advocate Amit Pai then said that the petition filed by him was a contempt petition of the Advocates Association of Bengaluru. Sibal said he is also appearing in a contempt petition and submitted "it is not for the AG to object to it."

AG at this point got agitated, "If Mr.Kapil Sibal can take charge of all appointments, I have no difficulty with it. Don't say it is not for the AG.. contempt we will answer.."

"Don't make it personal," Sibal replied.

"What do you mean Mr.Kapil Sibal?" AG asked.

"We are talking about institutions, sorry" Sibal said. "Of course, we are talking about institutions. Talking about institutions is not anybody's private prerogative," AG shot back in a raised voice.

"Seems to be yours," Sibal retorted.

CJI then reiterated :

"Mr.Attorney Genreal, come out with a chart and tell us what is the status of the recommendations which have been reiterated by the Collegium and what is the difficulty in making those appointments. Because, the collegium is not a search committee. It has a certain status in terms of the Constitution. In a case of a search committee, you have the discretion to accept or not to accept the recommendations made by the search committee. But Collegium is not a search committee. So you come back to us and tell us what is the status of those which are pending"

"Ultimately, Mr.Attorney General, the idea is not to unearth skeletons in the cupboard but to move forward. The business of governance must proceed," CJI added.

CJI also agreed to list the petitions of Common Cause and Advocates Association of Bengaluru.

In 2022-2023, a bench led by Justice SK Kaul (since retired) had dealt with the cases filed by Advocates Association of Bengaluru and Common Cause and passed several strictures against the Union's delay, following which certain appointments were cleared.

Yesterday, the CJI informed the Attorney General for India about the contempt petition filed by the State of Jharkhand against the Centre for the delay in appointing the Chief Justice of the Jharkhand High Court. AG said that he was not aware of the petition.

Attorney General R Venkataramani indicated that the Centre's decision on the pending Collegium resolutions regarding the appointment of Chief Justices of High Courts will likely happen soon. 

On July 11, the Supreme Court collegium had made recommendations for the appointment of Chief Justices of eight High Courts. However, the resolutions remained pending with the Union Government.

Last week, during the hearing of the petition seeking judges' appointments, AG told the Court that he wanted to share some "sensitive information" regarding the collegium recommendations. Accordingly, the matter was adjourned till September 20.

Meanwhile, on September 17, the Collegium modified three recommendations which were made as per the July 11 resolution.

Case Details : HARSH VIBHORE SINGHAL v UNION OF INDIA Writ Petition(s) (Civil) No(s). 702/2023, THE STATE OF JHARKHAND v. RAJIV MANI Diary No. 42846-2024