Stalemate over judges appointments continues as Supreme Court deplores Executive’s intransigence

Facts show Supreme Court Collegium itself accepted the rejection of the reiterated names on two occasions at the behest of the Executive.

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WHILE the Supreme Court bench led by Justice Sanjay Kishan Kaul has been repeatedly telling the Union Government that once the Collegium reiterates the name of a candidate for elevation, the government has to invariably notify the appointment, it has come to the light that the Supreme Court Collegium on two occasions accepted the rejection of the reiterated names.

The Attorney General for India R. Venkataramani before a bench comprising Justices Kaul, Abhay S Oka, and Vikram Nath made the disclosure.

As per the note submitted by the Attorney General, which is in possession of The Leaflet, the Collegium on January 16, 2019, recalled its recommendation despite reiteration with regard to advocate Amit Negi for his elevation to the Allahabad High Court.

The Collegium had recommended his name on August 30, 2016, and reiterated it on November 15, 2016. In view of some adverse input against him, the Collegium withheld his name in June 2017. However, on August 1, 2018, the Collegium revived its earlier reiterated recommendation. The government referred back his name to Collegium for reconsideration on November 16, 2018. The Collegium reiterated it on December 4, 2018. Yet, the government chose to disagree with the recommendation and sent back the name to the Collegium on January 5, 2021. Eventually, the Collegium decided to recall its recommendation on January 16, 2019. Former CJI Ranjan Gogoi then headed the Collegium.

Another instance is of advocate K.K. Paul whose name was recommended for elevation to the Kerala High Court. The Supreme Court Collegium initially recommended his name on March 23, 2019. The proposal was referred back to Collegium for reconsideration. However, Collegium decided to reiterate the name on March 3, 2021.  The Government of India referred back the reiterated proposal to the Collegium for reconsideration. Eventually, Collegium recalled its recommendation on August 12, 2021. Former CJI N.V. Ramana then headed the Collegium.

Also read: Supreme Court issues notice to Union Ministry of Law and Justice seeking explanation for delay in judicial appointments

Responding to the disclosure, Justice Kaul said he did not know what was weighed with the Collegium to recall its recommendations but he maintained as the law stands today as laid down in the Second Judges cases, if the recommendation is unanimously reiterated, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made. He thus sought an explanation from Attorney General over the return of reiterated names by the collegium adding that it's impermissible. Once a name is reiterated the appointment has to be made.

Last week, the Union Government returned the ten reiterated names to the Collegium for reconsideration. They are-

Allahabad High Court

1. Shishir Jain,
2. Manu Khare,
3. Rishad Murtaza,
4. Dhruv Mathur,
5. Vimlendu Tripathi

Calcutta High Court

1. Amitesh Banerjee
2. Sakya Sen

Karnataka High Court

1. Nagendra Ramachandra Naik.

Kerala High Court

1. Sanjeetha Kalloor Arakkal,
2. Aravinda Kumar Babu Thavarakkattil

Finalisation of MoP

Defending the delay in the appointment of judges, the Attorney General raked up the issue of non-finalisation of the Memorandum of Procedure (MoP) pursuant to the Supreme Court's decision in the NJAC case.

On December 16, 2015, in the NJAC case, the Supreme Court directed the Government of India to finalise the existing MoP taking into account factors such as eligibility criterion, transparency in the appointment process, secretariat, complaint mechanism, and any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommendees by the Collegium of the Supreme Court without sacrificing the confidentiality of appointment. Thereafter, the CJI was to take a decision based on the unanimous view of the Collegium comprising four senior-most puisne Judges of the Supreme Court.

A revised MoP was accordingly sent to the CJI on March 22, 2016. The Government received the response to the revised MoP on May 15, 2016 and July 1, 2016. Government on August 3, 2016, again sent its views to the response received from the CJI. Finally, the Supreme Court Collegium tendered its comments on the government's draft on March 13, 2017. It is this final draft that the Supreme Court Collegium takes into consideration. However, the government claims that the MoP is yet to be finalised.

Taking shelter under the views expressed by Justices Gogoi and Jati Chelameswar in the contempt matter of Justice C.S. Karnan, the government wanted to improve the MoP further. In that case, Justices Gogoi and Chelameswar had written a concurring opinion inter-alia highlighting the need to revisit the process of selection and appointment of Judges to the Constitutional Courts.

The government claims that the Supreme Court decision in the C.S. Karnan case gave a new opportunity to look into the MoP. It says it had therefore sent its stand to the Secretary-General, Supreme Court of India on 11.07.2017. The Government is yet to receive any response on the issue. Therefore, finalisation of MoP is still pending is the argument of the government.

This invited a sharp response from Justice Kaul who said that the views of two judges on the bench in the Karnan case are their own views, and not the decision of the 7-judges. Justice Kaul further said the MoP finalised in terms of the NJAC judgment is final, and the appointments ought to be made under it.

"You have conveniently picked up some views of the judges and included that. How can that be done? You may want some changes but in the meantime collegium along with the existing Memorandum of Procedure (MoP) has to work. Now it looks just like a blame game," Justice Kaul said.

Justice Kaul reiterated that the collegium system is the law of the land which should be followed to the teeth. Just because there are some sections of society who express a view against the collegium system, it will not cease to be law of the land.

"If everyone in society decided which law to follow and which law not to follow then there will be a breakdown", Justice Kaul said.

The bench also highlighted that the clouds of uncertainty over the appointment of judges led to the meritorious candidates not willing to give consent for judgeship and in fact, there are instances when they felt compelled to withdraw the consent.

Justice Nath expressed displeasure at comments against the collegium at the end of government functionaries.

The bench will now hear the matter on January 6. It has asked AG to play the role of the highest officer in the country and advise the government to follow the law of the land.

Click here to read the Court's order.