THE Union government has continued with its practice of notifying some names for judgeship while withholding other names disregarding the recommendations made by the Supreme Court Collegium.
In the latest turn of events, on Monday, the Union government cleared the appointment of two advocates, Ajay Digpaul and Harish Vaidyanathan Shankar, as judges of the Delhi High Court.
For reasons not available in the public domain, the government has withheld the appointment of advocate Shwetasree Majumder, whose name was also recommended for appointment by the collegium on August 21, 2024.
It is also not clear whether the government has returned the name of Majumder to the collegium for reconsideration or it has simply exercised a pocket veto.
As per the judgment in the Second Judges case of 1993, under which the collegium system was formed, the government is entitled to seek reconsideration of the recommendation made by the collegium but if the name is reiterated by the collegium, the government is obligated to notify the same.
However, the practice has been somewhat different as the incumbent government has been sitting over names for years altogether with no movement on the files.
In its recommendation, the collegium stated that Majumder had an extensive practice of more than 21 years and vast experience in civil matters, particularly intellectual property rights, technology, advertising and trade secret matters. Her elevation would be a valuable addition to the Bench of the High Court of Delhi and would promote diversity and inclusivity on the Bench, the collegium felt.
“The expertise of the candidate in the area of intellectual property rights is of significant importance in view of the pendency of such matters in the high court which are being dealt with by a dedicated IP [intellectual property] division,” the collegium said of Majumder, adding that she had a substantial practice which is reflected in 35 reported judgments delivered in the cases in which she appeared or argued and her average net professional income was ₹183.56 lakh per annum during the last five years.
The government has also not notified the appointment of advocate Tejas Dhirenbhai Karia as judge of the Delhi High Court. The collegium recommended Karia on August 29, 2024. It is also not clear whether the government has returned the name of Majumder to the collegium for reconsideration or it has simply exercised a pocket veto.
On Karia, the collegium had stated that he is a domain expert in the law of arbitration. The volume of cases on arbitration law requires specialised handling, particularly, in the High Court of Delhi, the collegium felt.
Tejas Dhirenbhai Karia will prove to be a valuable addition to the Bench of the High Court of Delhi, the collegium had noted, adding that his average net professional income during the preceding five years was ₹709.69 lakh per annum. This, the collegium said, was also indicative of the fact that the candidate had a substantial practice.
All four names were recommended by a collegium comprising the then Chief Justice of India (CJI) D.Y. Chandrachud and Justice (now the CJI) Sanjiv Khanna and Justice B.R. Gavai.
The High Court Collegium had recommended these names to the Supreme Court Collegium on October 25, 2023.
Pick-and-choose policy
The Modi government has been following a policy of pick-and-choose despite the Supreme Court time and again expressing its concerns over the government’s action of selectively giving effect to the collegium’s recommendations.
On November 7, 2023, while hearing a contempt petition against the Union government for not clearing the transfers and appointments of judges, a Bench comprising Justice Sanjay Kishan Kaul (now retired) and Sudhanshu Dhulia observed that the pendency of the transfer of judges was an issue of great concern as it had been selectively done.
“Once these people are already appointed as judges, where they perform judicial duties should not really be a matter of concern to the government and we hope that a situation would not come to pass where this court or the collegium has to take a decision which would not be palatable,” the Bench lamented.
After that rebuke by the Supreme Court, the Union government dawdled, transferring five of the eleven judges whose transfers had been recommended by the collegium and were pending.
Six recommendations of transfers, four from the Gujarat High Court and one each from the Allahabad and Delhi high courts, still await action. These six proposed transfers include the transfer of Justice Rajnish Bhatnagar from the High Court of Delhi to the Rajasthan High Court, for better administration of justice. Justice Bhatnagar subsequently retired from the Delhi High Court and the recommendation to transfer him was thus rendered infructuous by the government.
On November 20, 2023, when the Bench took up the contempt petition and flagged the inaction of the Union government over the transfer of the judges, the Attorney General of India requested it to take up the matter after some time and assured the court that it would not be disappointed after looking at the efforts he promised to make to ensure the recommendations are acted upon.
The Bench acceded to the request of the Attorney General and directed to list the matter on December 5, 2023.
However, the contempt petition was never listed on December 5, as directed by the Bench. When Advocate Prashant Bhushan mentioned the matter before Justice Kaul, who was set to retire in a few weeks, he informed Bhushan that he had not deleted the petition from his court nor was he unwilling to hear it.
When Bhushan exhorted that the Bench should seek an explanation about the “very strange” deletion of the matter from the registry, Justice Kaul told him, “I am sure the Chief Justice (of India) is aware of it.”
He added cryptically, “Some things are best left unsaid.”
On October 20, 2023, while calling the delay in acting on the recommendations of the transfer of judges as “troublesome and disturbing”, Justice Kaul averred that the Union government was disturbing judicial seniority through its policy of pick-and-choose.
A day after his retirement on December 25, Justice Kaul told the Hindustan Times that the collegium system is no longer the best mechanism and that the executive and judiciary should develop a new system to avoid “secretive” or “back-door” consultations.
The contempt petition, which the Justice Kaul-led Bench had been hearing, has not been listed for hearing since November last year, even though the recommendations on the transfer of judges as well the appointment of judges continue to remain pending with the government.
Now, a collegium headed by CJI Khanna has changed the practice of putting the collegium resolution on the court's website. The practice had remained in place for the last two years during the tenure of former CJI Chandrachud.
What prompted CJI Khanna to take this retrograde step of going back to opacity is not known. The collegium resolutions at least gave information about a little background of the candidates and the date when the High Court Collegium had recommended the names. Resolutions in many cases also disclosed the objections pointed out by the government.
But with the new system put in place by CJI Khanna, all of this will not be made public. The collegium now merely issues a statement stating so-and-so candidate has been recommended for appointment to so-and-so high court.
