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New Delhi The Supreme Court on Friday cautioned the Union government against a “pick and choose” approach in matters of judicial appointments, as it lamented that a raft of collegium’s recommendations for the appointment and transfer of judges remain pending because the government segregated names sent together by the collegium.
A bench, headed by justice Sanjay Kishan Kaul, pointed out that several recommendations made by the collegium were not acted upon by the government in the last nine months, which compelled the top court to start monitoring the steps taken by the Centre in processing the names.
At the same time, the bench also comprising justices Sudhanshu Dhulia and Manoj Misra, noted that while more than a dozen recommendations were cleared in the last one month after the court’s monitoring began, the recommendations were being selectively notified.
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“Pick-and-choose creates a lot of problems. When you appoint someone and not others, the very premise of seniority gets affected. The incentive to join the bench gets affected. And this is one prime reason good candidates do not want to give their consent,” the bench told additional solicitor general (ASG) Balbir Singh. It flagged the pendency of two names recommended for appointment as judges in the Madras high court for more than a year while two others were recently appointed.
Highlighting that the government notified the transfer of 16 judges two days ago while kept the other 11 pending, the court questioned the law officer for the rationale behind withholding the orders.
“Why do you do this? There is a consultative process in appointments. But in transfers, the man is already a judge. What kind of consultation or extensive deliberation could be required?” it asked Singh, who replied that the names are cleared by the government in batches.
Unimpressed with the submission, the bench retorted: “Batches create their own delay and their own dynamics. It should not give the impression that somebody has been able to delay (his transfer) while some others could not.”
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The court said that the transfer of judges must be done without delay since the five most senior judges in the Supreme Court decide in their wisdom that shifting of some judges will be in better administration of justice.
“They must be done. We would only say that you should not take it to that level where we have to say they (judges not getting transferred) won’t carry out their duties in the present court. You have done something, but more push is necessary,” it told Singh.
On his part, the ASG asked for three weeks more to come back with the latest status report, but the court gave the government two weeks’ time, and fixed the matter for hearing next on November 7.
The court was hearing a contempt plea filed by Advocate Association, Bengaluru, through advocate Amit Pai, highlighting several instances of pending appointments and unexplained holdover by the government.
Pai flagged his concerns about five names that have been reiterated by the collegium but were yet to be appointed by the government.
Acknowledging this, the bench asked the ASG: “Suppose there are four names, you appoint only two. And you do not say anything on why the names were segregated. This should not happen. Some of them have accepted and some of them have withdrawn out of frustration.”
In its order, the court recorded that there are ten names — five reiterated ones and an equal number of those recommended for the first time to be appointed as judges in high courts, that remain pending with the government, besides 11 transfers. “The ASG assures that matters are being sorted out. At his request, list this matter on November 7,” it stated.
On October 18, the Centre notified the transfer of 16 high court judges and appointment of 17 new judges in various high courts, two days before the scheduled hearing of this matter. Those shifted to other high courts included judges from the list of 26 recommendations made by the collegium in the first week of August, apart from justice MV Muralidaran, the acting chief justice of Manipur high court. His transfer was recommended by the collegium on October 10.
As of October 1, 347 posts of high court judges were lying vacant in the 25 high courts across the country against the total strength of 1,114. The vacancy translates to more than 31% of the total strength.
On September 26, the Supreme Court had decided to monitor the steps taken by the Centre in acting on Collegium’s recommendations for appointing and transferring judges, expressing its anguish at the delays.
When the matter was taken up next on October 9, the court observed that collegium’s recommendations cannot remain in “limbo”, emphasising that instead of sitting on them indefinitely, the government must either notify those appointments or send them back citing specific objections. Attorney general (AG) R Venkataramani, on the day, assured the court of some concrete steps.
Subsequently, the government on October 16 notified the transfer of the much-delayed appointment of Delhi high court judge Siddharth Mridul as the new full-time chief justice of the Manipur high court, more than three months after the collegium’s recommendation. Three judges in the high courts of Madras, and Manipur, including a judicial officer who would become the first woman from a scheduled tribe to become a judge in the Manipur high court, were also appointed on October 13.
While the memorandum of procedure (MoP), which guides the judiciary and the government in matters of the appointment and transfer of judges, is silent on the segregation of names by the latter, a former CJI had disapproved of this practice.
Justice RM Lodha, as CJI in July 2014, had written a letter to then Union law minister Ravi Shankar Prasad, stating that the government should not adopt such “unilateral segregation” in the future. Justice Lodha sent the missive after the NDA government had segregated former solicitor general Gopal Subramanium from the panel of four names recommended for appointment as Supreme Court judges by the collegium.
Utkarsh Anand is Legal Editor at the Hindustan Times. He writes on law, judiciary and governance.