Centre’s silence on judicial postings condemnable: Supreme Court

Keeping the names pending is something not acceptable, says Bench

November 11, 2022 01:16 pm | Updated November 12, 2022 10:19 am IST - NEW DELHI

The Supreme Court said there were enough “checks and balances” in the current collegium system of judicial appointments. File

The Supreme Court said there were enough “checks and balances” in the current collegium system of judicial appointments. File | Photo Credit: AP

The Supreme Court on Friday lambasted the Centre for withholding names recommended or reiterated by the collegium for judicial appointments, even saying that the government is using silence and inaction as “some sort of a device” to force worthy candidates and prominent lawyers to withdraw their consent.

“The government neither appoints the persons and nor communicates its reservation, if any, on the names… Keeping the names pending is something not acceptable,” a Bench led by Justice Sanjay Kishan Kaul observed.

The court issued notice to the Justice Secretary and Additional Secretary (Administration and Appointment) and listed the case for November 28.

The scathing five-page order comes even as the past few days have seen Law Minister Kiren Rijiju launch a relentless attack on the collegium system for lack of transparency.

But, in its order, the Bench said there were enough “checks and balances” in the current collegium system of judicial appointments.

“In the elaborate procedure from taking inputs from the government post recommendation from the collegium of the High Court, the Supreme Court collegium bestowing consideration on the names, there are enough checks and balances,” the order said.

But the government’s tendency to inexplicably withhold names for months on end, without even an explanation, would see rule of law and justice suffer.

‘A challenge’

“It is as it is a challenge to persuade persons of eminence to be invited to the Bench. On top of that if the process takes ages, there is a further discouragement to them to accept the invitation and this is undoubtedly weighing with the members of the Bar in accepting the invitation to adorn the Bench,” the court pointed out candidly.

The Bench said it had last year framed a broad timeline by which judicial appointments could start six months prior to vacancies. “This was conceived on a principle that the time period would be enough to process the names with the government,” the court said.

However, hardly anything has changed on the ground. The court said 11 names for judicial appointments cleared by the Supreme Court collegium were still pending with the government. “The oldest of them is of vintage September 4, 2021 as the date of dispatch and the last two on September 13, 2022,” the court underscored.

Editorial | Transfer as punishment: On the flawed collegium system

It said 10 other names reiterated by the collegium for appointment have been pending with the government, starting from September 4, 2021 to July 18, 2022.

In one case, the government has not budged though the collegium had reiterated the name thrice. In another, the candidate had withdrawn after a second reiteration from the collegium drew no response from the government. In yet another case, the candidate, Jaytosh Majumdar, whose appointment had been pending since September 2021, passed away recently.

The order recorded that it has already been five weeks since the collegium had recommended the name of Bombay High Court Chief Justice Dipankar Datta for elevation to the Supreme Court.

The Supreme Court itself has seven judicial vacancies out of a sanctioned strength of 34 judges. As of November 1, the judicial vacancies in 25 High Courts number 335 out of a total sanctioned strength of 1,108 judges.

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