9 Oct 2023 1:35 PM GMT
The Supreme Court on Monday revealed that almost all of the 70 recommendations made by various high court collegiums had been forwarded by the Centre after the court's last rebuke.
A bench comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was hearing a petition filed by the Advocates Association of Bengaluru seeking contempt action against the Union Ministry of Law and Justice for not adhering to the timeline set by the Court in a 2021 judgment for clearing collegium proposals. A writ petition filed by the non-profit Centre for Public Interest Litigation raising the issue of delay in judicial appointments was also listed along with the contempt petition.
"70 names pending before the ministry starting from November 2022 have now landed before the collegium. We are processing them and will try to finish with it before the October vacation. Will have to speak with the consultee judges."
Other than this, the Court indicated that the High Court Chief Justice's recommendation, 14 of the 26 transfer proposals, and five out of the 19 names either proposed for the first time or reiterated by the Supreme Court had been cleared. Despite the court's optimism today, Senior Advocate Arvind Datar and Advocate Prashant Bhushan, appearing for the petitioners, continued raising concerns over the government's delay in notifying appointments. They also suggested that names reiterated by the Supreme Court collegium be considered deemed appointments. This suggestion, however, did not find favour with the bench, with Justice Kaul pointing out practical concerns, "How does a deemed appointment work? There are practical complications. Also, the attorney-general won't be able to persuade the government to that effect."
But the judge categorically said that the collegium should not be in limbo, directing the government to either notify the appointments in terms of the recommendation made or return the names with specific concerns promptly. Expressing the hope that on the next date of the hearing, the attorney-general will be able to provide the court with more good news, the hearing was adjourned until October 20. "Hopefully you'll have some good news for us before Navratri," Justice Kaul said, before pronouncing the following order -
"The positive development is that a large number of recommendations from High courts pending with the ministry have finally been forwarded to the collegium. It would not be correct to say that they are pending with the Collegium, as they have been received just on the anvil of the last hearing, or in the last two days. The Collegium requires consultee judges' opinions to be taken and processing to be done, which is underway and will be done at the earliest. The next issue is the transfer of 26 judges of High Courts. Files in 14 cases have been cleared and notification will be issued shortly. In respect to the remaining 12 cases, it is stated to be under process. As far as the appointment of the Chief Justice of a High Court, which has been pending for a considerable time, and that too, for a sensitive state, it is submitted that the file has been cleared, and the notification will be issued shortly. Out of the names that were either recommended for the first time, or reiterated, five of the names have been stated to be cleared. We have already put to the learned attorney general that processes in view of the judgments dealing with the mode of appointment and the time period should be followed by themselves and should not require any monitoring by this court. The Attorney General submits that that is his objective. In order to see further progress made, list on October 20."
Background
In April 2021, a bench comprising then-Chief Justice SA Bobde, and Justices Sanjay Kishan Kaul and Surya Kant, in PLR Projects v. Mahanadi Coalfields, expressed serious concerns over the growing number of vacancies in high courts and urged the central government to promptly notify the appointments of candidates endorsed by the Supreme Court collegium. The court said that while the government could share its reservations regarding the recommendations, if any, by returning the names with specific reasons for its concerns, it should make the appointments within three to four weeks once the names are reiterated by the Supreme Court collegium.
To streamline the process, the court established a timeline: The Intelligence Bureau (IB) should submit its reports to the central government within four to six weeks from the date of the high court collegium's recommendation; in turn, the central government should forward the recommendations to the Supreme Court within eight to 12 weeks of receiving the intelligence agency's inputs and the state government's views; after the Supreme Court collegium sends its recommendations, the Centre should immediately notify the appointments of the candidates so endorsed, or return the recommendations within the same period, specifying the reasons for its reservations; and finally, if any or all of the names are reiterated, the appointments would have to be processed and notified within three to four weeks from the receipt of the names.
Later in the same year, a contempt petition was filed by the Advocates Association Bengaluru accusing the Centre of violating the court's directions by not approving 11 names reiterated by the Supreme Court collegium.
Last November, when the Supreme Court sought the Centre's response to the contempt petition, it triggered a heated confrontation between the judiciary and the executive on the issue of judicial appointments. After this case was taken up, the then Union Law Minster Kiren Rijiju used several public platforms to openly question the validity of the collegium system. The law minister's public remarks were met with disapproval from the court, which on its judicial side expressed dismay and urged the attorney-general to advise the Centre to follow the law laid down by the court regarding judicial appointments.
On a previous occasion, the Attorney-General for India R Venkataramani, on behalf of the government, assured the court that the timeline for judicial appointments would be followed and the pending collegium recommendations be cleared soon. Despite this assurance, the Centre has, for instance, not yet notified the appointment of advocates Saurabh Kirpal, Somasekhar Sundaresan, and John Satyan despite the court reiterating their names rejecting the government's objections.
On another occasion, the court also reminded that once the aspect of a memorandum of procedure was settled by a constitution bench judgment, the Centre could not circumvent it. Any delay in appointments 'frustrated the whole system', the court has said. It also expressed grave concerns over the Centre's practice of 'splitting up collegium resolutions' disrupting the seniority of the persons nominated for judgeship. The issue, which had died down for a while after the Centre cleared a spate of collegium resolutions, now seems to be coming back alive with the Court expressing its strong intention to pursue the matter.
Case Title
Advocates Association Bengaluru v. Barun Mitra And Anr. | Contempt Petition (Civil) No. 867 of 2021 in Transfer Petition (Civil) No. 2419 of 2019