A Bench headed by Justice Kaul hearing the matter of delays in appointment and transfer of judges had been asking the government to follow the law laid down by the court. Reportedly, to many this seemed “coercing” the government to expedite appointments.
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TWO days after Justice Sanjay Kishan Kaul retired from the Supreme Court as the senior-most judge, the Chief Justice of India (CJI) convened a collegium meeting to recommend names of the chief justices to five high courts.
The collegium, which now comprises the CJI Dr D.Y. Chandrachud and Justices Sanjiv Khanna and B.R. Gavai, made recommendations to appoint chief justices to the high courts of Allahabad, Gauhati, Jharkhand, Punjab and Haryana, and Rajasthan.
The collegium has recommended Rajasthan High Court judge Justice Arun Bhansali’s name for appointment as chief justice of the Allahabad High Court.
The Allahabad High Court has been functioning without a regular chief justice since November 22 when the then incumbent Chief Justice Pritinker Diwaker demitted the office on retirement.
The name of yet another judge of the Rajasthan High Court, Justice Vijay Bishnoi, has been recommended by the collegium for appointment as chief justice of the Gauhati High Court.
The Gauhati High Court has been functioning sans regular chief justice since November 9 when the then incumbent Chief Justice Sandeep Mehta was appointed to the Supreme Court.
The collegium has also recommended the appointment of Justice B.R. Sarangi, judge, Orissa High Court as chief justice of the Jharkhand High Court. Justice Sarangi is presently working as acting Chief Justice of the Orissa High Court after the then incumbent Chief Justice Subhasis Talapatra retired on October 4 this year.
The collegium has also recommended the appointment of Justice Sheel Nagu, a judge of the Madhya Pradesh High Court, as the chief justice of the high court of Punjab and Haryana. The post of chief justice there has been lying vacant since October 14 when Justice Ravi Shanker Jha retired as chief justice.
Interestingly, on November 2, the collegium had recommended the appointment of the senior-most judge of the Punjab and Haryana High Court, Justice Ritu Bahri as chief justice of the Uttarakhand High Court.
However, the government is yet to notify her appointment. Currently, she is functioning as acting Chief Justice at the Punjab and Haryana High Court.
The collegium has also decided to recommend the name of Justice Manindra Mohan Shrivastava, judge of the Rajasthan High Court as the chief justice of the Rajasthan High Court. Justice Shrivastava hails from the Chhattisgarh High Court.
Also read: As high courts stare at a mountain of case pendencies, almost one-third of judge posts lie vacant
The Rajasthan High Court has been functioning sans regular chief justice since November 9 when the then incumbent Chief Justice Augustine George Masih was appointed to the Supreme Court.
The latest recommendations of the collegium have come even as three recommendations of the collegium to appoint chief justices to the high courts of Orissa, Uttarakhand and Meghalaya have been pending with the government. These recommendations were made on November 2.
Times of India has reported that the CJI tactically refrained from holding the collegium meeting after November 6 because Justice Kaul had been pushing for some names which allegedly found resistance from other members of the collegium.
As a matter of general practice, when the CJI or a collegium judge is at the end of their tenure, collegium meetings are avoided.
Weeks before his retirement, Justice Kaul heard a contempt petition filed by an advocates association in Bengaluru alleging inaction by the government on the collegium’s recommendations.
Many appointments and transfers came through only after his intervention as he had been prodding the government to follow the law of the land.
As per the law laid down by the Supreme Court in the Second and Third Judges cases, if the Union government has any reservation with regard to the recommendation made by the collegium, it can seek reconsideration of the same.
If the collegium, on reconsideration, decides to reiterate the recommendation, the government has no choice but to give effect to the recommendation.
On April 20, 2021, the Supreme Court, in M/s. PLR Projects Pvt. Ltd versus Mahanadi Coalfields Ltd. & Ors, said that the Union government should forward the file or recommendations to the Supreme Court within eight to 12 weeks from the date of receipt of views from the state government and the report and input from the Intelligence Bureau, and if the Supreme Court Collegium reiterates the recommendation(s), such appointment should be processed and appointment should be made within three to four weeks.
The Bench headed by Justice Kaul had been asking the government to follow the law laid down by the court. The Times of India report states that to many this seemed “coercing” the government to expedite appointments.
In his statement to the Times of India, Justice Kaul said he had strong reservation to the word ‘coercing’ the government to expedite the appointment process adding that implementing the judgment setting out the timeline for appointment can hardly be coercion.
When Justice Kaul heard the contempt petition for the last time in November, he had issue with the government selectively notifying the transfers of the judges recommended by the collegium.
He had highlighted the inaction of the government to transfer out four Gujarat High Court judges namely Justices Alpesh Y. Kogje, Kumari Gita Gopi, Hemant M. Prachchhak and Samir J. Dave. The collegium had decided to move them out to the high courts of Allahabad, Madras, Patna and Rajasthan respectively.
Justice Kaul had also flagged the government’s reluctance in notifying the transfer of Allahabad High Court judge Justice Prakash Padia to the Jharkhand High Court and Delhi High Court’s Justice Rajnish Bhatnagar to the Rajasthan High Court.
The contempt petition was slated to be heard on December 5 when it got deleted from the court of Justice Kaul. When advocate Prashant Bhushan complained to Justice Kaul over the unexplained deletion of the matter, Justice Kaul said in open court that he had not deleted the petition seeking contempt proceedings against the Union government over delays in the appointment and transfer of judges from his court nor was he unwilling to hear it.
Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
Article 144 mandates that all civil and judicial authorities act in aid of the Supreme Court.
The government has no choice but to follow the law laid down by the Supreme Court on the appointment of judges till the Parliament legislates any other way of appointment of judges.
