SC hits out at govt for sitting on names approved by collegium
NEW DELHI: Delays by the Union government in acting on recommendations of the collegium on judicial appointments may well be a mechanism to compel competent lawyers, unwilling to wait indefinitely, to withdraw their names from judgeship, the Supreme Court said on Friday, adding that the endless hold-up by the Centre in clearing names is “not acceptable”.
“We find that the method of keeping names on hold whether originally recommended or reiterated is becoming some sort of a device to compel these persons (lawyers) to withdraw their names, as has happened...just keeping the name pending is something not acceptable to us,” said a bench led by justice Sanjay Kishan Kaul in its order.
The bench, which also included justice AS Oka, pointed out that by a 2021 order, the top court laid down an outer limit of 18 weeks for the Centre to process the names for appointments of the high court judges after the names are forwarded from the high court. This judgment said that if the Supreme Court collegium decides to reiterate a name despite government’s objections, the appointment must come through within four weeks.
“It does appear that directions in terms of the 2021 judgment have been observed in breach on many occasions,” rued the bench, referring to 11 names recommended by the Supreme Court collegium between September 2021 and July 2022. Some of these names, the court noted, have remained pending with the Centre for at least a year -- the oldest of which dated back to September 2021.
“This implies that the government does not either appoint the person nor does it communicate its objections. There are also 10 other names pending with the government, which have been reiterated by the Supreme Court Collegium...we are really unable to understand and appreciate such delays,” recorded the bench in its order, seeking explanations from the secretary, department of justice and additional secretary, administration and appointment, by November 28.
Law minister Kiren Rijiju has consistently spoken against the collegium system of judicial appointments to constitutional courts. On October 17, speaking at an event in Ahmedabad, Rijiju said that judges spend half their time in deciding who to appoint as judges instead of delivering justice, as he termed the collegium system “opaque”.
In 2014, the government passed the National Judicial Appointment Commission Act, setting up an alternative system for appointment of judges to constitutional courts, but in 2015, the Supreme Court ruled that the law was unconstitutional.
The office of the law minister did not respond to the court’s remarks.
The court pointed out that with growing opportunities for prominent lawyers, it is already a challenge for the collegium to persuade eminent lawyers to join the bench. “If the process takes ages, there is a further discouragement. This (delay) is undoubtedly weighing on the members of the bar in accepting the position,” regretted the bench, as it heard a contempt plea moved by Advocate Association, Bengaluru, through advocate Amit Pai.
The plea cited various instances of contravention of the timeline framed by the apex court in its 2021 judgment, besides violation of a nine-judge-bench decision in 1993 which obligated the Centre to make appointments after the collegium reiterates names.
On Friday, the court recorded the example of senior advocate Aditya Sondhi (without naming him) who withdrew his consent for his elevation as a Karnataka high court judge in February after having waited for a year for the government to ratify the elevation.
Similarly, a name reiterated twice in 2021 for appointment as a judge in the Karnataka high court was also not appointed. In its order, the bench recorded that another lawyer, Jaytosh Majumdar whose name was recommended for the first time in July 2019, passed away earlier this year.
“Needless to say, unless the bench is adorned by competent lawyers, the very process of law and justice suffers. The Supreme Court collegium bestowing consideration of the names by the high court collegium; there are enough checks and balances,” said the bench.
It also sought assistance of attorney general R Venkataramani on the next date of hearing.
In its order, the court also took note of a complaint by senior advocate and president of the Supreme Court Bar Association, Vikas Singh, that the government has also not cleared the elevation of Bombay high court chief justice Dipankar Dutta as a judge of the Supreme Court though the collegium’s resolution was dated September 26.