Center must stop ‘pick and choose’ approach in collegium proposals: Supreme Court rejects ‘selective’ appointment of judges

The Supreme Court on Tuesday (November 7) once again expressed its disapproval of the central government’s “pick and choose” approach, which selectively accepts names from the collegium’s decisions for the appointment of judges.

It also conveyed its concerns to the Attorney General for India R Venkataramani on the pendency of certain proposals of the College for the transfer of judges to Supreme Courts. “The transfers must be communicated, otherwise there will be an anomaly in the system. Once a judge is appointed, it is not a matter for the government where he or she exercises his judicial functions. Tomorrow the college can jointly recommend that no appointment be made.” The court warned the judicial officer.

The bank includes Justice Sanjay Kishan Kaul And Sudhanshu Dhulia heard a petition filed by the Advocates Association of Bengaluru seeking a contempt action against the Union Ministry of Law and Justice for non-compliance with the law The timetable set by the Court in a 2021 ruling for the approval of collegium proposals on November 7, 2023. Along with the contempt action was also listed a writ petition from the non-profit Center for Public Interest Litigation raising the issue of delay in the appointment of judges.

During today’s hearing, the bench verbally disapproved of the Center’s practice of “segregating” the bench’s recommendations, which resulted in the seniority of judicial candidates being disrupted between judges. Justice Kaul cited the recently approved appointments to the Punjab and Haryana High Court as an example. While the Supreme Court collegium had recommended appointment of five lawyers as judges of the Supreme Court, the union government approved only three names and ignored the proposed first and last names. Justice Kaul said other recent appointments made by the Center also followed this pattern and categorically asked it to stop the practice. Justice Kaul addressed the Attorney General and said: “This selective business… This pick-and-choose has to stop.”

During the hearing, advocate Prashant Bhushan, representing the Center for Public Interest Litigation, expressed dissatisfaction with the method adopted by the court, describing it as far too “soft”. Urging the court to “crack the whip” instead of relying on the Attorney General’s assurances and summoning the Attorney General or Attorney General personally to explain why the government failed to comply with the court’s earlier directions, Bhushan said: “This cannot continue indefinitely provided the lawyer assures that he will sort out the matter. It is time for your Lordships to crack the whip because the Government appear to be getting away with it. You have to appeal to the law.” The minister or the justice minister. Otherwise it will never be resolved. Let them come and say what instructions they have from superiors. Ultimately, your Lordships will have to bring someone to justice for this gross contempt of court.”

Senior Advocate Arvind P Datar, representing the Advocates Association of Bengaluru, urged the court to issue directions under Article 141 of the Constitution. “This is not a problem with this government or that government. It is a chronic problem. Perhaps it is time for your Lordships to legislate the Article 141 Act. This should not require the impetus of the court. Once the schedule is set, this should be the default. Justice Dhulia mentioned that the appointment cannot be taken as a given because who will sign is a different question.” said the senior lawyer.

While welcoming the limited progress in the appointment of judges, the Court today expressed concerns about the lack of progress since the last hearing. It particularly called on the Attorney General to direct his attention to the issue of the pendency of proposals for the transfer of judges from one Supreme Court to another, as well as the issue of selective appointment of candidates approved by the Collegium of the Supreme Court and the seniority line dissolved. “I thought last time we made progress and got closer to reconciliation. This issue needs to be addressed. I’ve now highlighted two issues that really worried us. Please take care of that.” Judge Kaul told the judicial officer. In its order, the bench recorded its assurance that it would discuss these issues with the government.

Regarding the pendency of transfers, the court warned that it may issue judicial orders if the issue persists. ““We hope that the College or this court will not make a decision that is not palatable,” the bank observed in the order.

Notably, the court also expressed concern that it was difficult to attract successful lawyers to join due to the delay in the process or selective appointments. “Lawyers accept being a judge as a sense of responsibility, as a contribution to society. Why should they accept it? Who would go out of their way to practice law in the hope that their name would be cleared? People who do that.” Senior…if they lose, they retreat…There also needs to be silence once a name has been suggested so that there isn’t an indefinite period of time where the person continues to hope that something happens. Judge Kaul remarked. In the order, the bench stated:

“Selective appointments have been made in recent recommendations. This is also worrying. If some appointments are made but others are not, intersequential seniority is disrupted. This is hardly conducive to convincing successful lawyers to join the bench.”

To date, five old names are pending despite being reiterated by the collegium for the second time or otherwise, and 14 newer proposals to which the Center has not yet received a response, the court revealed during the hearing. After dictating the order, Justice Kaul told Solicitor General R. Venkataramani: “Lawyer, show some progress. This transfer problem is immediately apparent, apart from selective appointments.”

The court in September confirmed his fears to Attorney General R Venkataramani over the government’s delays in clearing the names or announcing the recommendations, pointing out that seventy recommendations made by Supreme Court Collegiums since November 11, 2022 are pending with the Center. The Chamber also highlighted that seven names confirmed by the Collegium of the Supreme Court, nine names proposed for the first time, one promotion to Chief Justice and 26 transfer proposals are still pending. Almost all of the 70 Supreme Court recommendations have been forwarded to the Supreme Court and some progress has been made in the other pending cases, as announced at the next hearing in October.

At the last opportunity “Positive developments” in judicial appointments were praised in light of the numerous appointments and transfers of high court judges announced by the central government following the Supreme Court’s rebuke. At the same time, the Chamber reiterated its concerns regarding name separation and the pendency of certain College proposals.

The matter will be taken up again on Monday, November 20.

background

In April 2021, a bench comprising then Chief Justice SA Bobde and Justices Sanjay Kishan Kaul and Surya Kant was constituted PLR projects v. Mahanadi coal fields, expressed serious concern over the growing number of vacancies in high courts and called on the Central Government to immediately notify the appointments of candidates endorsed by the Supreme Court Collegium. The court said that while the government could express its reservations, if any, about the recommendations by returning the names with specific reasons for their concerns, it should make the appointments within three to four weeks once the names have been approved by the Collegium were confirmed by the Court of Justice.

To streamline the process, the court set a timetable: the Intelligence Bureau (IB) should submit its reports to the central government within four to six weeks from the date of the Supreme Court’s recommendation; the central government, in turn, should forward the recommendations to the Supreme Court within eight to twelve weeks of receiving the inputs from the intelligence agency and the views of the state government; After the Collegium of the Supreme Court has submitted its recommendations, the Center should immediately notify the appointments of the candidates so endorsed or return the recommendations within the same time specifying the reasons for its reservations. Finally, if some or all of the names are repeated, the appointments would have to be processed and communicated within three to four weeks of the names being received.

Later the same year, the Advocates Association of Bengaluru filed a contempt suit accusing the Center of violating the court’s directions by not approving 11 names reiterated by the Supreme Court collegium.

When the Supreme Court sought the Centre’s response to the contempt petition last November, it triggered a heated confrontation between the judiciary and the executive over the issue of appointment of judges. After this case was taken up, the then Union Law Minister Kiren Rijiju used several public platforms to openly question the validity of the collegium system. The Attorney General’s public statements drew disapproval from the court, which in turn expressed dismay and asked the Attorney General to advise the Center to abide by the court’s laws on the appointment of judges.

On an earlier occasion, Attorney General of India R. Venkataramani, on behalf of the government, assured the court that the schedule for appointment of judges would be adhered to and the pending recommendations of the collegium would be approved soon. For example, despite this assurance, the Center has not yet notified the appointment of lawyers Saurabh Kirpal, Somasekhar Sundaresan and John Satyan despite the court reiterating their names and rejecting the government’s objections.

On another occasion, the court also recalled that once the aspect of a memorandum of procedure is clarified through a judgment of the Constitutional Court, the Center cannot bypass it. Any delay in the appointment “frustrated the entire system,” the court said. It also raised serious concerns over the Centre’s practice of “splitting decisions of the collegium”, thereby affecting the seniority of those nominated for the judicial post. The matter had been in the background for a while after the Center cleared a spate of collegium resolutions and now seems to be coming back to life with the court expressing its strong intention to pursue the matter further.

Case title

Bengaluru Bar Association v. Barun Mitra & Anr. | Contempt Petition (Civil) No. 867 of 2021 in Transfer Petition (Civil) No. 2419 of 2019

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