In the latest in the ongoing tug of war between India’s highest court and the Modi 2.0 government, the Supreme Court on Friday, November 11, issued a notice to the union law secretary on a petition filed over the delay in clearing the names approved by the Collegium for appointment as judges. Justices Sanjay Kishan Kaul and Abhay Sreenivas Oka made strong critical remarks while considering the matter today.
LiveLaw reports that the bench was considering a contempt petition filed by the Advocates Association Bengaluru in 2021 (The Advocates’ Association Bengaluru v. Shri Barun Mitra, Secretary) 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.
The bench observed that in the cases of 11 names which have been reiterated by the Collegium, the Centre has simply kept the files pending, without giving either approval or returning them stating reservations, and such practice of withholding approval is “unacceptable”. “There are 11 cases pending with the government which were cleared by the collegium but are awaiting appointments…. This implies that the government neither appoints the names nor communicates its reservations if any”, the bench observed in the order.
The bench stated that delay in clearing the names can lead to the recommended persons withdrawing their consent for judgeship and this can deprive the system of eminent persons.
“Keeping names on hold is not acceptable. It is becoming some sort of a device to compel these persons to withdraw their consent as has happened”, the bench noted 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.
Appointment must follow after second reiteration by the Collegium
The Court stressed that after second reiteration, the only option before the Centre is to issue the appointment order. In some cases, the Centre sought reconsideration. But despite a second reiteration, the government did not clear the names and the persons withdrew their names and the Court lost the opportunity to have an eminent person on the Bench.
The bench clarified that it is issuing a “simple notice” to the Law Secretary. The bench noted in the order that one of the names reiterated, Jaytosh Majumdar, for Calcutta High Court passed away. Senior Advocate Vikas Singh, appearing for the Supreme Court Bar Association, pointed out that the Centre has not yet acted upon the recommendation regarding the elevation of Chief Justice Dipankar Dutta to the Supreme Court for the past 5 weeks. Advocate Amit Pai appeared for the petitioner association.
In several instances reported by the media recently, the Union Law Minister Kiren Rijiju has made sharp remarks against the collegium system calling it “opaque”. The Minister added that it is the job of the Government to appoint judges.
The following eleven names were specifically highlighted in the petition,
1. Jaytosh Majumdar (Advocate)
Proposed for appointment as Calcutta High Court Judge; First recommended on July 24, 2019; Name reiterated on September 1, 2021.
2. Amitesh Banerjee (Advocate)
Proposed for appointment as Calcutta High Court Judge; First recommended on July 24, 2019; Name reiterated on September 1, 2021.
3. Raja Basu Chowdhury (Advocate)
Proposed for appointment as Calcutta High Court Judge; First recommended on July 24, 2019; Name reiterated on September 1, 2021.
4. Lapita Banerji (Advocate)
Proposed for appointment as Calcutta High Court Judge; First recommended on July 24, 2019; Name reiterated on September 1, 2021.
5. Moksha Kazmi (Khajuria) (Advocate)
Proposed for appointment as Jammu & Kashmir High Court Judge; First recommended on October 15, 2019; Name reiterated on September 9, 2021.
6. Rahul Bharti (Advocate)
Proposed for appointment as Jammu & Kashmir High Court Judge; First recommended on on March 2, 2021; Name reiterated on September 1, 2021.
7. Nagendra Ramachandra Naik (Advocate)
Proposed for appointment as Karnataka High Court Judge; First recommended on October 3, 2019; Name first reiterated March 2, 2021; Name reiterated a second time on September 1, 2021.
8. Aditya Sondhi (Advocate)
Proposed for appointment as Karnataka High Court Judge; First recommended on February 4, 2021; Name reiterated on September 1, 2021.
9. J Umesh Chandra Sharma (Judicial Officer)
Proposed for appointment as Allahabad High Court Judge; First recommended on February 4, 2021; Name reiterated on August 24, 2021.
10. Syed Waiz Mian (Judicial Officer)
Proposed for appointment as Allahabad High Court Judge; First recommended on February 4, 2021; Name reiterated on August 24, 2021.
11. Sakya Sen (Advocate)
Proposed for appointment as Calcutta High Court Judge; First recommended July 24, 2019; Name reiterated on October 8, 2021.
It was further submitted that the conduct of the Central government is in direct contravention with the Supreme Court judgments in Subhash Sharma, the Second Judges case, the Third Judges case wherein the Supreme Court had repeatedly advocated for the expedite appointment of the recommended names by the Supreme Court collegium.