Selective appointment of judges troublesome, SC tells govt

The Union government must stop picking and choosing from a set of recommendations made by the collegium while appointing judges, the Supreme Court said on Tuesday, adding that the “business of selective appointments has become troublesome” when an “element of workable trust” was required between the executive and judiciary.

A bench, headed by justice Sanjay Kishan Kaul, also urged the Centre not to withhold a name just because the candidate happens to be appearing for an Opposition party ruling in a state or argues as a defence lawyer against the Centre or its agencies in criminal cases. It pointed out that 19 appointments to the high court, and 11 transfers, were pending.

“Some lawyers may have some connection to a different political party. How else can you become a standing counsel or a law officer for a government? If there is not a deep-rooted political connection which can influence their decisions, there should not be any objection. You have to balance this aspect. 40% of states may be ruled by you but there are other states also that have their own lawyers. Your dispensation will also have some connection with some of the lawyers being recommended. Unless there is some strong political connection, there is no reason not to process their recommendations,” the bench, which also included justice Sudhanshu Dhulia, told attorney general R Venkataramani.

“If you see, from 1950 onwards there always has been a tussle on who makes it to the top. It has been going on. We say there has to be an element of workable trust. Once we factor in the concerns of the government, that should be the end of it. A defence lawyer will appear against the government. If the idea is to only appoint prosecutors, that creates an imbalance,” added the court, fixing the next hearing on November 20.

Hearing a contempt plea filed by Advocate Association, Bengaluru, highlighting several instances of pending appointments and unexplained holdover by the government, the court expressed anguish over the fact that recommendations were selectively processed not only for fresh appointments of high court judges but also for a batch of high court judges proposed to be transferred.

It highlighted how the collegium proposed five names of lawyers for appointment as judges in the Punjab & Haryana high court last month, but the government cleared only three of them, leaving out the two most senior in the list.

“Incidentally, the two senior candidates also belong to Sikh (minority) community. This is not acceptable. Pick and choose has created a lot of problems. Don’t do this. People who are senior will withdraw. Some of them have already been affected. This is one aspect that’s troublesome...Please, ensure someone who is junior is not picked up but the senior one is not,” the bench told Venkataramani.

While the A-G responded that he would certainly make his endeavour to see to it that the process of judicial appointment is quick, the court told him that another problematic issue involves shuffling the list up and down.

Citing almost a dozen transfers that are yet to be processed by the government whereas 16 from the same lot were notified, the bench said: “This selective business must stop. Where a judge should work must be left to the judiciary. The issue of transfer is greatly troubling us. It must happen quickly,” it said.

In its order, the court recorded: “Pendency of transfer matters is an issue of great concern as it is being selectively done. Learned A-G submits that issue is being taken up by him with the government. Once these people are already appointed as judges, where they perform their judicial duties should not be of concern to the government. We hope that a situation does not come to pass where this court or the collegium has to take any unpalatable decision.”

During the proceedings, the bench further flagged that the government should not sit over other names if the collegium does not find favour with some of the names that the government wanted it to positively reconsider for appointment as judges in high courts.

“Suppose there are certain candidates who the government thinks are suitable to be appointed as judges, but the collegium doesn’t agree. That’s the end of the matter. Somebody expects to be a judge and we do not accept that then that should be the end. This has happened in more than one case. This cannot be the reason why other names are halted. Otherwise, it becomes like a ping pong ball,” the bench told Venkataramani.

It implored the government to play its part in selecting the best talent as judges, who justice Kaul said, are currently reluctant to “put their neck on the block” due to uncertainty in appointments as well possible loss of seniority even if they are cleared.

In its order, the court recorded that there are 19 names – five reiterated ones and 14 of those recommended for the first time to be appointed as judges in high courts, that remain pending with the government, besides 11 transfers.

“Please, show some progress on the next date. Transfer is something that stares us in the face. It must happen quickly. We have also recommended names for the Supreme Court now. Otherwise, everything gets stuck,” it told the A-G, adjourning the case to October 20.

On Monday, the Supreme Court collegium recommended three high court chief justices for appointment as judges in the top court. Chief justices Satish Chandra Sharma (Delhi high court), Augustine George Masih (Rajasthan high court) and Sandeep Mehta (Gauhati high court) were proposed to be elevated to the apex court. Justice Masih belongs to a minority community. The Supreme Court, which has a sanctioned strength of 34 judges, is currently short of three judges.

On October 18, the Centre notified the transfer of 16 high court judges and appointment of 17 new judges in various high courts, two days before the hearing of the contempt matter on a previous date.

As of November 1, 332 posts of high court judges were lying vacant in the 25 high courts across the country against the total strength of 1,114. The vacancy translates to about 30% of the total strength.

On September 26, the Supreme Court decided to monitor the steps taken by the Centre in acting on the collegium’s recommendations for appointing and transferring judges, expressing its anguish at the delays.

When the matter was taken up next on October 9, the court observed that the collegium’s recommendations could not remain in “limbo”, emphasising that instead of sitting on them indefinitely, the government must either notify those appointments or send them back citing specific objections. The A-G, on the day, assured the court of some concrete steps.

Subsequently, the government on October 16 notified the transfer of the much-delayed appointment of Delhi high court judge Siddharth Mridul as the new full-time chief justice of the Manipur high court, more than three months after the collegium’s recommendation. Three judges in the high courts of Madras, and Manipur, including a judicial officer who would become the first woman from a scheduled tribe to become a judge in the Manipur high court, were also appointed on October 13.

While the memorandum of procedure (MoP), which guides the judiciary and the government in matters of the appointment and transfer of judges, is silent on the segregation of names by the latter, a former CJI had disapproved of this practice.

Justice RM Lodha, as the CJI in July 2014, wrote a letter to then Union law minister Ravi Shankar Prasad, stating that the government should not adopt such “unilateral segregation” in the future. Justice Lodha sent the missive after the NDA government segregated former solicitor general Gopal Subramanium from the panel of four names recommended for appointment as Supreme Court judges by the collegium. Subramanium subsequently withdrew his nomination.