SC directs govt. to produce chart on each name reiterated by Collegium for judicial appointment

‘The Supreme Court Collegium is not a search committee (for judges) whose recommendations can be stalled,’ said the Bench which also comprised Justices J.B. Pardiwala and Manoj Misra

The Supreme Court on Friday (September 20, 2024) asked the government to explain its reasons for sitting on names reiterated by the apex court Collegium for months or even years together, reminding the Centre that it cannot treat the Collegium like a mere “search committee” whose recommendations can be ignored or accepted at the Union’s discretion.

A three-judge Bench headed by Chief Justice D.Y. Chandrachud asked Attorney General R. Venkataramani, appearing for the government, to place on record, within a week, a tabulated chart of every pending name reiterated by the Collegium, why they were still pending and at what level they were stuck in the government machinery.

The CJI said the intention of the court behind this exercise was not to “unearth skeletons in the cupboard but to move forward so that the business of governance proceeds”.

“Give us a tabulated chart showing the status of each one of the recommendations reiterated by the Supreme Court Collegium and what is the difficulty in making such appointments… The Supreme Court Collegium is not a search committee. It has a certain status in terms of the constitutional fabric… On the other hand, in the case of a search committee, there is an absolute discretion on whether to accept or not its recommendation,” Chief Justice Chandrachud addressed Mr. Venkataramani.

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The Second Judges case mandates that Supreme Court Collegium reiterations must be cleared by the government for judicial appointment as a healthy convention. In a December 2022 order, the Supreme Court had observed that ignoring or returning names reiterated by the Supreme Court Collegium would amount to acting in breach of the Second Judges case, which had evolved the Collegium system of judicial appointments in 1993.

The brief hearing began with Mr. Venkataramani pressing for a week’s adjournment, saying he would need more time to get “some responses” on some of the pending High Court appointments. The Chief Justice agreed, saying some appointments in the pipeline were “expected to be cleared” soon.

But senior advocate Kapil Sibal and advocate Amit Pai, for petitioners, raised the issue of several High Courts functioning with Acting Chief Justices for “months together”.

Lawyer Prashant Bhushan said reiterated names must be appointed by the government immediately.

“There are a very large number of reiterations, including that of senior advocate Saurabh Kirpal… We have in our petitions pointed out 12 of them,” he submitted.

Mr. Kirpal, who if appointed would be India’s first openly gay High Court judge, was recommended by the Delhi High Court Collegium in October 2017. The Supreme Court Collegium recommended him for appointment as Delhi High Court judge in November 2021 and had reiterated his name in January 2023. The government had objected to his strong advocacy of gay rights.

Similarly, advocate John Sathyan was recommended by the Supreme Court Collegium for the Madras High Court Bench in February 2022. The Collegium had reiterated his name in January 2023.

Mr. Bhushan sought a direction that Collegium recommendations should be deemed to have been accepted if the government chooses not to respond within six weeks.

Mr. Sibal referred to the case of Justice B.R. Sarangi, whose tenure as Jharkhand Chief Justice was cut short to 15 days. The Supreme Court Collegium had recommended his name as Jharkhand Chief Justice in December 2023. The government kept the recommendation pending for six months till July 3, 2024. Justice Sarangi retired on July 19, 2024.

The hearing witnessed a brief verbal skirmish between the Attorney General and Mr. Sibal, with the former at one point saying “if Mr. Kapil Sibal can take charge of all the appointments, I have no difficulty”.

Mr. Sibal urged the top law officer not to “make it personal” and the discussion was on institutions. “Talking about institutions is not anybody’s personal prerogative,” Mr. Venkataramani shot back.

Published - September 20, 2024 01:27 pm IST