The Supreme Court has lamented that the Union government is yet to clear 50 percent of the recommendations made by the collegium.
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IN yet another development in the turf war in the appointment of judges, the Supreme Court on Monday questioned the Union government on the non-appointment of two Sikh lawyers as judges of the Punjab and Haryana High Court.
A division Bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was hearing petitions on the issue of delay in appointing judges and the failure of the Union government to process names recommended by the collegium.
The Bench reportedly referred to the Union government’s failure in clearing the name of two of the five advocates, namely— Harmeet Singh Grewal and Deepinder Singh Nalwa.
On October 17, the Supreme Court Collegium, comprising the Chief Justice of India Dr D.Y. Chandrachud and Justices Sanjay Kishan Kaul and Sanjiv Khanna, recommended the names of five advocates for elevation to the high court.
Judges of high courts are appointed from among the district judiciary or judicial officers and the Bar. In February this year, the Supreme Court held that the ratio of 1:3 between the judges who are elevated from the district judiciary to high courts and advocates who are elevated from the Bar needs to be maintained.
The collegium resolution noted that on April 21, 2023, the Chief Justice of the High Court of Punjab and Haryana recommended the elevations. The chief ministers and the governors for the states of Punjab and Haryana concurred with the recommendation, the resolution added.
On the non-clearance of Grewal and Nalwa, the Supreme Court categorically questioned Attorney General R. Venkataramani on why the names of the two candidates, who are “both Sikhs”, were not cleared by the Union government.
On the pending transfer of judges, the Bench noted that of the eleven names recommended for transfer, only five have been transferred. One transfer is pending from Allahabad, another from Delhi and four from Gujarat, the Bench highlighted.
Further, the Bench stressed that eight candidates have not been appointed from recently reiterated names and that the government has not responded with its comments on five names.
With this, the Bench raised the concern on “selective transfers” that disturb seniority since the candidates that are yet to be appointed are senior to those already appointed.
Seniority is a relevant factor taken into consideration by the collegium.
“It becomes difficult to then persuade candidates to join the Bench,” the court noted.
The Bench emphasised that the Union government cannot “pick and choose” from the names recommended by the collegium for transfer of judges.
On an assurance from the Attorney General that action would be taken concerning the recommendations, the matter was posted for further hearing on December 10.
The tussle over delays
The Supreme Court has time and again expressed its concerns over the government’s action of selectively giving effect to the collegium’s recommendations.
In January this year, the Supreme Court took a “grim view” on the Union government delaying the appointment of judges to the higher judiciary.
A Bench, comprising Justices Sanjay Kishan Kaul and Abhay S. Oka, observed that the government’s delay in clearing the transfer of judges was obstructing justice.
In February this year, the Supreme Court warned the Union government of “unpalatable consequences” if the collegium’s recommendations to transfer high court judges were not given effect in the next ten days.
Action on the recommendations was delayed and the unpalatable consequences had to swallow a bitter pill.
Earlier, in November last year, the Supreme Court had issued a notice simpliciter seeking an explanation from the secretary of the Union law ministry over delays in appointments.
The court had expressed its displeasure at the Union government’s delay in appointing judges, and in some cases simply sitting on the recommendations, despite the collegium reiterating recommended appointments.
In April 2021, a Supreme Court Bench led by the former Chief Justice of India S.A. Bobde had taken note of the fact that the collegium’s recommendations remained pending with the government for a considerable period and prescribed timelines for the appointment of judges.
The Bench, also comprising Justices Sanjay Kishan Kaul and Surya Kant, had directed the Union government to notify appointments within three to four weeks after the collegium reiterated its recommendations.
The Bench had also noted that it would be “desirable” for the Union government to forward the recommendations to the Supreme Court within eight to twelve weeks from the date of receipt of views from the state government and the report or input from the Intelligence Bureau.
The second judge’s case
One of the petitioners, Advocates Association, Bengaluru, has reportedly relied upon the Second Judges case to submit that the Union government’s delay or failure in processing recommendations of the collegium violates the judgment.
The collegium system, i.e., the system of appointment and transfer of judges, has evolved through the case of Supreme Court Advocates on Record Association and Another versus Union of India (1993), also known as the Second Judges case.
The judgment in that case observed that each functionary involved in the appointment of judges must observe a “sense of urgency” to ensure that the process of appointment or transfer of judges is not delayed.
The judgment refers to the report by the 14th Law Commission headed by M.C. Setalvad, stating, “Any proposal made by the Chief Justice of a state for increasing the strength of the high court, if it has the concurrence of the Chief Justice of India, should be accepted without demur or delay.”
The decision of the nine-judge Constitution Bench in the Second Judges case mandates that if the recommendation is unanimously reiterated, with reasons for not withdrawing the recommendation, then that appointment ought to be made.
