Union Government versus Supreme Court Collegium: Turf war on judges’ appointments enters crucial phase

With the Supreme Court giving the Union Government a limited respite in the form of one more week to resolve the issue of non-compliance with the Collegium's recommendations, all eyes are now on December 8, the next date of hearing of this case.

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THE Supreme Court, on Monday, again expressed its displeasure at the Union Government's unwillingness to clear the names of judges recommended by the Supreme Court Collegium. The Court termed the government's inaction as amounting to frustrating the entire system.

"How will the system work if the Union Government continues to sit over the appointment of judges", Justice Sanjay Kishan Kaul asked Attorney General for India, R. Venkataramani.

The bench, which also comprised Justice Abhay S. Okay, urged the Attorney General and Solicitor General of India to play the role of law officers to ensure the law of land regarding the appointment of judges prevails.

On November 11, the same bench expressed its disappointment that the Union Government sought reconsideration in cases where the Collegium had reiterated its recommendation, and subsequently the recommendee withdrew their consent for elevation as a judge. "The system lost the opportunity of having an eminent designated Senior Advocate on the Bench", the division bench had observed in its order.

In the last order, the bench had also recalled another instance where the government had sought reconsideration, although the Collegium had reiterated it thrice. "Keeping the names pending is something not acceptable", the bench had made it clear then.

The bench suggested that the method of keeping the names on hold, whether duly recommended or reiterated, is becoming some sort of a device to compel these persons to withdraw their names.

The bench expressed its concern that in the absence of competent lawyers adorning the courts, the very concept of rule of law and justice would suffer.

On Monday, the bench pointed out the dual standards followed by the government in approving the Collegium's recommendations: in some cases, it clears the names within two-three days, and in some other cases, it takes months altogether.

 "Sometimes when you appoint, you pick up a name from the list and not others. What you do is effectively disrupt the seniority. When the Collegium takes a decision, it takes into consideration various factors, including seniority", Justice Kaul told the Attorney General.

The bench said that the appointment of chief justices to the high courts is a crucial matter. Even there, the Collegium's recommendations are not being approved.

The bench made it clear that the timeline laid down by the Supreme Court in M/s PLR Projects Pvt. Ltd. versus Mahanadi Coalfields Ltd. (2021) ought to be adhered to. In this case, the Supreme Court fixed a schedule to give effect to the Collegium's recommendations. The time period of sending names six months in advance, prior to the vacancies, was conceived on a principle that the said time period would be enough to process the names with the government.

In the last order, the bench deplored the fact that the government neither appoints the persons (recommended by the Collegium) nor communicates its reservations, if any, on the names (withheld by it). The bench had then referred to eleven cases pending with the government, which were cleared by the Collegium, and yet were awaiting appointments. It also noted that ten names pending with the government had been reiterated by the Collegium between September 4 last year and July 18 this year.

The bench had reminded the Government in its last order that in the elaborate procedure, from taking inputs from the government post-recommendation from the collegium of the high court to the Supreme Court Collegium bestowing consideration on the names, there are "enough checks and balances".

On the vacancies in the high courts, Justice Oka pointed out on Monday that because of the delay in appointments, many competent lawyers are not giving consent for being considered for the elevation.

"The Chief Justices are finding it difficult to convince lawyers", Justice Oka said.

"I am troubled by the fact that first-generation lawyers, who are competent and have come from law schools, are declining judgeship due to this reason", Justice Kaul added.

Senior advocate Vikas Singh, who is also President of the Supreme Court Bar Association, sought to draw the attention of the court to a statement made by Union Law Minister Kiren Rijiju to the effect that "never say the government is sitting on files; if that is the case, then you only appoint and run the show." Justice Kaul said that many things are said in the press for different purposes. Responding sharply to the Law Minister's statement, Justice Kaul said, "Give us the power, and we will issue notifications of the appointments."

Justice Kaul added that it appears that the government is not happy that the National Judicial Appointments Commission has not passed muster.

 "Can that be the reason for not clearing the names? Once the name is reiterated by the Collegium, it is the end of the chapter, and that is the law of the land", Justice Kaul said.

On November 11, the bench, while refraining from issuing a contempt notice to the Union Government, issued a simple notice, returnable for November 28, seeking an explanation from the Secretary (Justice) and the Additional Secretary (Administration and Appointment) over delays in appointments.

On Monday, despite the issue of notice by the Supreme Court, neither the Secretary (Justice), nor the Additional Secretary (Administration and Appointment) filed an appearance on their behalf, the Office Report noted.

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

The plea warns that a very dangerous precedent would be set if the executive conferred upon itself the power to implement only those binding recommendations that were to its liking and chose not to implement others.

"It is submitted that the failure to implement the binding decision of the Collegium headed by Hon'ble the Chief Justice of India, even upon reiteration, would amount to a wilful disobedience of the orders of the Hon'ble Supreme Court", the plea states.

Even as the bench has listed further hearing of the matter on December 8, it expressed its optimism that the law officers – the Solicitor General and the Attorney General – would persuade the government in the meantime to resolve the issue.