Government not approving transfer of judges obstructs the administration of justice: Supreme Court

TAKING a grim view of the Union Government’s delaying tactics on the appointment of judges to the higher judiciary, the Supreme Court on Friday told the Attorney General for India that it was of the firm view that the appointments have to be made as per existing law, referring to the Collegium system envisaged in the Second and Third judges cases.

The bench, comprising Justices Sanjay Kishan Kaul and Abhay S. Oka, also took strong exception to the Union Government sitting on the Collegium’s recommendations regarding the transfer of high court judges, adding that this not only obstructs the administration of justice but also gives an impression that it is due to third party influence in the system.

The bench also said that the government sending back reiterated names to the Collegium was a matter of concern.

“Government might have apprehensions but names cannot be kept on hold without sending us some comments in the fear that we will reiterate. Once we reiterate I don’t see any problem in clearing the appointment,” the bench said.

The bench revealed that 22 names had been sent back by the government. Of them, some names had been returned for the first time, and others had been returned despite reiteration by the collegium.

When the bench asked Attorney General R. Venkataramani about the five names recommended by the Collegium for elevation to the Supreme Court on December 13 last year, the latter sought some time from the court to apprise the court of the status. He assured the court that the names would be processed expeditiously.

Venkataramani also informed the bench that of the 104 names, a total of 44 names would be processed by the government in the coming days, for elevation as high court judges.

The bench was hearing a contempt petition filed last year by the Advocates’ Association Bengaluru through Advocate-on-Record Amit Pai.

Senior advocate Vikash Singh and advocate Prashant Bhushan sought to argue that the Union Government could not be allowed to return the reiterated names. Bhushan submitted that the government keeps the reiterated names to itself in anticipation of change in the collegium composition. In such a situation, the collegium should not be allowed to withdraw its recommendations, Bhushan submitted.

On December 22, while responding in Parliament, Union Law Minister Kiren Rijiju said as many as 154 proposals regarding the appointment of judges, received from various high courts, were at different stages of processing between the Union Government and the Supreme Court Collegium, adding that it has been receiving representations from diverse sources on the lack of transparency, objectivity and social diversity in the collegium system of appointment of judges to the Constitutional Courts.

As on December 16, against the sanctioned strength of 34 judges, 28 judges are working at the Supreme Court, leaving six vacancies to be filled. On December 13, the Supreme Court Collegium recommended the names of five high court judges for elevation to the Supreme Court. The government is yet to clear these appointments.

Against the sanctioned strength of 1,108 judges, 775 judges are working in the high courts, leaving 333 vacancies to be filled. Law Minister Rijiju further informed the Parliament that recommendations from High Court Collegiums are yet to be received in respect of 179 vacancies at various high courts.

The government is also sitting on files concerning the transfer of the Chief Justice from one high court to another, and the transfer of judges from one high court to another. For instance, the Collegium on September 28, 2022, recommended the transfer of the Orissa High Court’s Chief Justice Dr. S. Muralidhar to the Madras High Court and made a recommendation that the senior-most judge in Orissa, Justice Jaswant Singh be appointed as chief justice there.

The government has not notified the appointments till now. The same day, the Collegium also made a recommendation to transfer Justice Sanjaya Kumar Mishra from the Uttarkhand high court to the Jharkhand high court, Justice K. Vinod Chandran from Kerala to Bombay, and Justice Aparesh Kumar Singh from Jharkhand to Tripura. However, these recommendations are still pending with the government.

Meanwhile, the Collegium on December 13 last year, recommended that Justice Sanjaya Kumar Mishra be appointed as chief justice of the Jharkhand high court, Justice N. Kotiswar Singh be appointed as chief justice of the Jammu & Kashmir and Ladakh high court, and Justice K. Vinod Chandran be appointed as chief justice of the Gauhati High Court. However, the government is yet to notify these recommendations.

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