Government to adhere to timelines fixed by Supreme Court for judicial postings

The government’s statement seems to be a step down from its earlier view that it was not a “post office” to clear Collegium recommendations.

Updated - January 06, 2023 11:04 pm IST

Published - January 06, 2023 02:15 pm IST - New Delhi

A view of Supreme Court Building in New Delhi.

A view of Supreme Court Building in New Delhi. | Photo Credit: Shiv Kumar Pushpakar

Attorney-General of India R. Venkataramani told the Supreme Court on Friday that the Union government will adhere to the timelines fixed by the court to process recommendations for judicial appointments.

The government’s statement seems to be a step down from its earlier view that it was not a “post office” to clear Collegium recommendations.

The court had remarked in an earlier hearing that the government, miffed by the striking down of the National Judicial Appointments Commission (NJAC) law in a judgment in October 2015, was deliberately delaying appointments and remaining incommunicado on Collegium recommendations.

Recent months had witnessed harsh words from Union Law Minister Kiren Rijiju about the Collegium system of judicial appointments.

“We cannot pick and choose if the judgment [NJAC] is aligned with the government’s views and decide to enforce it or not. We enforce the law [Collegium system] as it exists. I have said if you want to bring in a better system, nothing prevents the legislature from doing it. But every system has its pluses and minuses. Nobody says this is a perfect system. Nor can a replacement system be perfect. Ultimately people operate these systems… The issue needs to be resolved. It is not a healthy situation… I will be out of the system in a year. My grave concern is are we creating an environment where meritorious people hesitate to give consent to offers of judgeships?” Justice Sanjay Kishan Kaul, heading a Bench comprising Justice A.S. Oka, asked the Attorney-General on Friday.

Justice Kaul said the government should not be guided by political affiliations, personal philosophy and cases in which an individual had appeared as a lawyer while considering names for judgeships.

“A criminal lawyer will appear for criminals. A defence counsel will appear in economic offences cases. That does not mean anything… There are different political affiliations and points of view… We praise Justice Krishna Iyer for outstanding contributions on the Bench… Look from where he came from! I do believe when you join as a judge, you lose many colours and you are here to do a job independently de hors whatever your political affiliations may have been… Integrity is the first qualification,” Justice Kaul said.

Mr. Venkataramani agreed there had to be a “fusion between two different points of views” and friction should be avoided.

He said the government would be likely processing 44 names for High Court judgeships and forwarding them to the Supreme Court Collegium over the weekend.

The various High Courts had forwarded to the government a total of 104 names for judgeships. A 2021 judgment of the top court had given the timeline of a maximum 18 weeks for the government to process the names forwarded to the Law Ministry by the High Courts and send them to the Supreme Court Collegium for final approval.

Mr. Venkataramani, however, sought more time to “look into” the pending Collegium recommendations of five judges to the Supreme Court.

The Collegium, led by Chief Justice of India D.Y. Chandrachud, had in December proposed to the government the names of Rajasthan Chief Justice Pankaj Mithal; Patna Chief Justice Sanjay Karol; Manipur Chief Justice P.V. Sanjay Kumar; Patna High Court judge, Justice Ahsanuddin Amanullah, and Allahabad High Court judge, Justice Manoj Misra, for appointment as top court judges.

“But these recommendations should not take time on your part to clear. They are Chief Justices and senior judges of the High Courts after all,” Justice Kaul addressed the top law officer for the government.

The Bench said the pending elevation of the three Chief Justices to the Supreme Court was holding up the process for appointments of judges who would replace them as Chief Justices in their respective High Courts.

“We have impressed on the Attorney-General that there will be vacancies of Chief Justices which will arise on the ground of elevations to the Supreme Court and those cannot be proceeded with till those elevations take place, which is a matter of concern,” Justice Kaul recorded in the court order.

The Bench said the government had sent 22 recommendations back to the Collegium. These include names freshly recommended by the Collegium, those repeatedly reiterated by it and also “some names the Collegium did not clear but the government in its wisdom feel ought to be considered”. Justice Kaul said the Collegium would deliberate on this issue next week.

“Sending back of reiterated names is a matter of concern. If the Collegium reiterates names, in the present scenario, nothing can prevent their appointment as judges,” Justice Kaul cautioned.

“There is application of mind at the highest level,” the Attorney-General said.

Senior advocate Vikas Singh and advocate Prashant Bhushan said the court ought to pass a direction that reiterated names cannot be sent back by the Centre and stop the “continuous ping-pong battle”.

“The Collegium recommendations are published on the Supreme Court website. Then it takes months to appoint those persons. Meanwhile, their professional reputations may get injured,” Justice Oka observed.

The Bench said the Collegium recommendations to transfer 10 High Court judges have been pending for months, two of them since September last year. The government has a “very limited” role in judges’ transfers done in the interest of the administration of justice. Transfers are recommended after taking the opinions of consulting judges, Chief Justices of High Courts concerned and the judges proposed for transfer.

“Delay not only affects the administration of justice but also creates an impression as if third party interests are interfering on behalf of these judges with the government,” the court noted.

Pending transfers also stop Chief Justices of the High Courts concerned from making further recommendations to fill up judicial vacancies, it explained.

The government had complained in Parliament that the Supreme Court had rejected 25% names recommended by the High Courts for judgeships, adding to the delay in judicial appointments.

“We heard what you (Centre) said in the Parliament about the Collegium dropping names. It shows the scrutiny we do of the names forwarded to us. We drop names because of the opinions of consulting judges, materials on record and also the opinion of the government,” Justice Kaul told Mr. Venkataramani.

The Bench said the government’s “tinkering” with the seniority of names recommended by the Collegium was both disturbing and delaying the appointment process.

“When seniority of judges is disturbed by the government, the Collegium will be hesitant to send further recommendations,” Justice Kaul flagged the issue.

The court listed the case on February 3 while expressing hope that the government by that time would have issued more warrants of judicial appointments to the constitutional courts.

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