Justice Sanjay Kishan Kaul heading a division bench expressed a deep sense of anguish at the Centre for sitting over Collegium’s proposals on judicial appointments and further went on to wonder if the recommendations are being withheld on account of Government’s discontent with the non-implementation of the National Judicial Appointments Commission, reported LiveLaw. He said,
“The issue is, names are not being cleared. How does the system work? We have expressed our anguish…It appears that the Govt is not happy that the NJAC has not passed the muster. Can that be the reason to not clear the names?“
The strong remarks come soon after Law Minister Kiren Rijiju criticized the Collegoum system –for the second time– at the Times Now Summit. The minister had said that that the Collegium system is alien to the Constitution of India and isn’t backed by the people of the country and that the Government can’t be expected to merely approve the names recommended by the Collegium.
Referring to this, Justice Kaul said that people may have reservations about the law (Collegium system). But till it stands, it is the law of the land.
During the hearing of the case (The Advocates’ Association Bengaluru v. Shri Barun Mitra, Secretary (Justice), senior advocate Vikas Singh, President of the Supreme Court Bar Association, brought to the attention of the bench the defiant comments made by the Law Minister that “never say that the government is sitting on the files, then don’t send the files to the government, you appoint yourself, you run the show then”.
Expressing strong disapproval of the Minister’s comment, Justice Kaul said : “When someone high enough says that..it should not have happened..Mr AG, I have ignored all press reports, but this has come from somebody high enough also. With an interview… I am not saying anything else..”
The judge continued, “The whole process takes time, IB inputs are taken. Your inputs are taken. Supreme Court collegium considers your inputs and sends the name. Once it is reiterated, that is the end of the matter, as the law stands now.“
Justice Kaul therefore asked the Attorney General and the Solicitor General to convey the “sentiments of the bench” to the Govt and ensure that law of the land is followed. The matter has been kept for December 8.
“Both of you are senior enough to convey the sentiments of the bench to the Govt. Please resolve the issue, don’t force us to decide on the judicial side”, Justice Kaul told the Attorney General and the Solicitor General. The judge reminded them that the bench had exercised restraint by not issuing a contempt notice.
Attorney General for India R Venkataramani told the bench that he had discussions with the Secretaries after the last order of the Supreme Court and assured the bench that he will endeavour to resolve the deadlock.
“There is a need for some expedition without bringing in any other factor. After receiving the order, I had a couple of discussion with the Secretaries. Some facts were told. I had a couple of questions too. Let me come back. Let me weed out the issues”, the AG said.
The bench also comprising Justice AS Oka was considering a contempt petition filed by the Advocates Association Bengaluru in 2021 against the Centre not approving 11 names reiterated by the Supreme Court collegium. The Association contended that the Centre’s conduct is in gross violation of the directions in PLR Projects Ltd v. Mahanadi Coalfields Pvt Ltd wherein the Supreme Court directed that names reiterated by the Collegium must be cleared by the Centre within 3 to 4 weeks.
Justice Kaul also said that withholding the recommendations often frustrates the entire system. He pointed that many competent lawyers and judges are uncertain about accepting judgeship, due to the uncertainty involved.
“When we persuade youngsters to accept judgeship, their concern is what is the guarantee the appointments take place in time…Timelines have to be adhered to. Many recommendations have crossed the 4 month limit. No information to us…One lawyer whose name was recommended has unfortunately passed away. Another has withdrawn consent. Please resolve the issue… I am troubled by the fact that first generation lawyers, who are competent and have come from law schools, are declining judgeship due to this reason.“
Justice Kaul further criticized the practice of splitting the Collegium recommendations. He orally said,
“Sometimes when you appoint, you pick up some names from the list and not others. What you do is you effectively disrupt the seniority. When the Supreme Court collegium makes the recommendation, many factors are kept in mind.“
Seventeen days ago, on Nov 11, criticising the Centre for delaying the appointments, the Court had issued notice to the Secretary (Justice).
“Keeping names pending is not acceptable. We find the method of keeping the names on hold whether duly recommended or reiterated is becoming some sort of a device to compel these persons to withdraw their names as has happened.”, the bench noted in the order.
The bench observed that in the cases of 11 names which have been reiterated by the collegium, the Centre has kept the files pending, without giving either approval or returning them stating reservations, and such practice of withholding approval is “unacceptable”.
“If we look at the position of pending cases for consideration, there are 11 cases pending with the Government which were cleared by the Collegium and yet are awaiting appointments. The oldest of them is of vintage 04.09.2021 as the date of dispatch and the last two on 13.09.2022. This implies that the Government neither appoints the persons and nor communicates its reservation, if any, on the names.”, the bench observed in the order.
One of the instances cited in the petition is that of Senior Advocate Aditya Sondhi, whose elevation to the Karnataka High Court was reiterated in September 2021. In February 2022, Sondhi withdrew his consent for judgeship as no approval regarding his appointment was forthcoming.