Don’t bypass judicial candidates over political links, SC tells govt.

Your pick-and-choose policy must stop, Justice Kaul told the Centre

Published - November 07, 2023 10:52 pm IST - NEW DELHI

Justice Kaul said someone’s expertise as a criminal lawyer with a record of representing accused persons against the government should not be held against him during judicial appointment process. File

Justice Kaul said someone’s expertise as a criminal lawyer with a record of representing accused persons against the government should not be held against him during judicial appointment process. File | Photo Credit: Sandeep Saxena

The Supreme Court on Tuesday made it clear to the Centre not to selectively bypass people recommended by the collegium for judicial appointment merely for their political connections or for defending a case against the government in court.

“We have a system of governance by which different parties govern different States… You have to balance the fact that 40% of the States are governed by Opposition parties. So, there may be people holding law officers’ positions or having some association with these parties… Some lawyers are recommended by the collegium, even if they are not politically very active, but have some connection with either the ruling or the Opposition parties,” Justice Sanjay Kishan Kaul, heading a Bench with Justice Sudhanshu Dhulia, addressed the Centre, represented by Attorney-General R. Venkataramani.

The court differentiated between a candidate’s association with a political party, for instance as a law officer for the State, with someone having a “deep-rooted political aspect that will affect his judicial work”.

Likewise, Justice Kaul said someone’s expertise as a criminal lawyer with a record of representing accused persons against the government should not be held against him during judicial appointment process.

“As a criminal lawyer he might have invariably done cases against the government. But that is all the more reason that he will be adept in hearing criminal cases on this side. If you choose a person on the basis of who he appeared for, only public prosecutors can be elevated to the Bench,” Justice Kaul observed.

The Bench warned that the government’s selective transfer of High Court judges, despite repeated cautions from the top court, may trigger an “unpalatable” reaction from the collegium.

“Once people are appointed as judges, where they perform their duties cannot be a matter of concern for the government… Whether a judge should work in ‘A’ court or ‘B’ court should be left to the judiciary. We are reaching that stage where tomorrow the collegium will collectively advise not to assign judicial work to this judge… Do not make us take that step. It is not beyond our powers to do so. I am saying this with responsibility after discussion with the collegium. It is not an off-hand remark from me,” Justice Kaul warned the government.

The court said the government’s pick-and-choose policy both in appointment and transfers of High Court judges was a matter of “great concern”. “Pick-and-choose must stop,” Justice Kaul declared in court.

Justice Kaul said segregation of names from the list recommended by the collegium disturbed inter se seniority within the judiciary.

“You do not clear names even after the collegium recommendation… I don’t think I can ever now suggest to a young, competent lawyer with a reasonable law practice to sacrifice it to accept an invitation to the Bench. Why would anyone want to put his head on the block?” Justice Kaul conveyed his dejection.

He said there were 14 names recommended by the collegium pending with the government with no response. Five names have been reiterated by the collegium for judicial appointment twice or more times.

Advocates Prashant Bhushan and Amit Pai, for the petitioner Advocates Association of Bengaluru, said the Bench had given the government a long rope all these months and that it was time to “crack the whip” by initiating contempt action.

Senior advocate Arvind Datar said it was time the court “laid down the law under Article 141 to not allow segregation of names cleared by the Supreme Court Collegium”. Article 141 mandates that the law declared by the Supreme Court is binding on all.

Mr. Venkataramani sought more time for a “fruitful discussion” with the government. The Bench listed the case for further hearing on November 20.

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