Selective decisions by the Centre on the appointment and transfer of judges “sends a wrong signal,” the Supreme Court said on Monday, adding that the court will continue to monitor the status of the collegium’s recommendations not to take an antagonistic stance against the government, but because it is “necessary for the system.”
Selective decisions by the Centre on the appointment and transfer of judges “sends a wrong signal,” the Supreme Court said on Monday, adding that the court will continue to monitor the status of the collegium’s recommendations not to take an antagonistic stance against the government, but because it is “necessary for the system.”
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A bench led by Justice Sanjay Kishan Kaul urged the Centre not to separate names from a batch of collegium recommendations, citing the court’s worries about the government’s “pick and choose” in appointing and removing high court justices.
“According to our information, you have issued transfer orders for five high court judges but not for six others.” Gujarat has four of these names. What motivates you to accomplish this? Picking and choosing does not convey a positive signal. “Do not make selective transfers,” the bench, which also included justices Sudhanshu Dhulia, ordered government attorney general R Venkataramani.
The bench emphasized that selective transfers have their own dynamics, noting that four of the six transfers still to be reported by the government were from the Gujarat high court. “What signal do you send when four judges from Gujarat are not transferred at all?” it went on to ask.
In response, the A-G stated that work was being made in processing the collegium’s recommendations while requesting further time for the government. “We gave you time earlier, too,” the bench said, “but six transfers are still pending.” This is simply unacceptable. What was the signal you sent? Four Gujaratis were not transported at all.”
It warned the administration that if their transfers were delayed long, it would issue certain “unpalatable orders,” including the withholding of judicial activity from high court justices. “It will embarrass those judges if there are costs to follow in case you don’t transfer judges,” Venkataramani was quoted as saying.
The court also expressed its displeasure with the government’s segregation of the batch of five names of lawyers proposed by the collegium for appointment as judges in the Punjab and Haryana high courts last month, with the government clearing only three of them, leaving out the two most senior in the list.
“You chose and chose again. Their seniority has suffered as a result. Two of the unqualified applicants are Sikhs. Why should this happen? Why would individuals accept to become judges if you make such selective orders? We are attempting to resolve previous issues, but you are causing new ones,” it informed Venkataramani.
The law officer, for his part, stated that some of the delay was due to the upcoming assembly elections and that he would make sure the court was not disappointed on the next hearing date.
The court adjourned the contempt petition brought by the Advocate Association of Bengaluru, which highlighted multiple instances of delaying appointments and inexplicable stay by the government, to December 5, and noted in its decision that six transfers were outstanding. According to the order, while eight applicants have not been nominated based on suggestions submitted since July, five names have been repeated and five names have been proposed for the first time.
“Some of these names are appointed before others. This is something we’ve discussed before…it’s tough to persuade applicants to join the bench…We will continue to hear about this issue. “This is not an adversarial approach, but it is necessary for the system,” the court stated.
Senio counsel Dushyant Dave, who was representing one of the parties in the case, pointed out that the government approved the appointment of three new Supreme Court judges in two days, whereas certain recommendations for high court judges have been pending for more than two years. The bench agreed with him, telling the A-G that such disputes are unavoidable with selective selections.
The Supreme Court collegium proposed three high court chief justices for nomination as Supreme Court judges on November 6. Chief justices Satish Chandra Sharma of the Delhi High Court, Augustine George Masih of the Rajasthan High Court, and Sandeep Mehta of the Gauhati High Court have all been suggested for elevation to the Supreme Court. Justice Masih is a member of a minority group. The administration approved their elevation on November 8, and the judges were sworn in later that day.
The Centre notified the transfer of 16 high court judges and the appointment of 17 new judges in various high courts on October 18, two days before the contempt hearing on a prior date.
As of November 1, 332 high court judge positions were empty in the country’s 25 high courts, out of a total of 1,114. The vacancy represents around 30% of the entire strength.
The Supreme Court resolved on September 26 to monitor the Centre’s actions in acting on the collegium’s recommendations for appointing and transferring judges, expressing its displeasure with the delays.
When the case was heard again on October 9, the court stated that the collegium’s recommendations could not be left in “limbo,” emphasizing that the government must either announce those appointees or send them back with specific objections. On the day in question, the A-G promised the court of some meaningful efforts.
Following that, the government, more than three months after the collegium’s recommendation, notified the transfer of the much-delayed appointment of Delhi High Court Justice Siddharth Mridul as the new full-time chief justice of the Manipur High Court on October 16. On October 13, three judges were appointed to the high courts of Madras and Manipur, included a judicial officer who would become the first woman from a scheduled tribe to serve as a judge in the Manipur high court.
During the November 7 proceedings, the bench stated that the government must stop picking and choosing from a set of collegium recommendations, adding that the “business of selective appointments has become troublesome” when a “element of workable trust” between the executive and judiciary was required.
While the memorandum of procedure (MoP), which governs the court and the government in matters of judicial appointment and transfer, remains quiet on the latter’s practice of name segregation, a past CJI has disapproved of it.
In July 2014, Justice RM Lodha, then-CJI, wrote to then-Union law minister Ravi Shankar Prasad, suggesting that the government should not use such “unilateral segregation” in the future. Justice Lodha issued the letter after the NDA administration excluded former solicitor general Gopal Subramanium from the pool of four candidates proposed by the collegium for appointment as Supreme Court justices. Subramanium later withdrew his nomination.
