The Supreme Court on Friday expressed displeasure over the delay by the Centre in clearing the names recommended for appointment as judges in the higher judiciary, including those reiterated by the apex court Collegium, and said keeping them pending is “something not acceptable”.
The top court said it had earlier clarified that once the government has expressed its reservation and that has been dealt with by the Collegium, post second reiteration, only the appointment has to take place.
“Thus keeping the names pending is something not acceptable,” a bench of justices S K Kaul and A S Oka said.
“We find 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 as has happened,” it said.
The top court said unless the Bench is adorned by competent lawyers, very concept of “Rule of Law and Justice suffers”.
The bench issued notice to the incumbent Secretary (Justice) of the Union Law Ministry and Additional Secretary (Administration and Appointment) seeking their response on a plea alleging “wilful disobedience” of time frame laid down to facilitate timely appointment in the apex court’s April 20 last year order.
The plea filed by the Advocates’ Association Bengaluru, through lawyer Pai Amit, has raised the issue of “extraordinary delays” in the appointment of judges to the high courts as well as the segregation of the names, which is “detrimental to the cherished principle of the independence of the judiciary”.
It has referred to 11 names which were recommended and later, reiterated also.
The bench noted in its order that the “critical position” of vacancies in the high courts and the delay in appointment of judges had constrained a three-judges bench of the top court to pass order on April 20, 2021 seeking to lay down broad timeline within which the appointment process should be completed.
“With the expanding opportunities to prominent lawyers, it is as it is a challenge to persuade persons of eminence to be invited to the Bench. On top of that if the process takes ages, there is a further discouragement to them to accept the invitation and this is undoubtedly weighing with the members of the Bar in accepting the invitation to adorn the Bench,” it said.
It noted that the top court had earlier endeavoured to lay down timeline taking into consideration the process for appointment of judges as also the fact that the time period of sending names six months in advance, prior to the vacancies, was conceived on a principle that it would be enough to process the names with the government.
“It does appear that directions in terms of the order are being observed in breach on many occasions,” it said, adding, “If we look at the position of pending cases for consideration, there are 11 cases pending with the government which were cleared by the Collegium and yet are awaiting appointments.” The bench said the oldest of them is of “vintage” September 4, 2021 as the date of dispatch and the last two on September 13, 2022.
It said this implies that the government neither appoints the persons, nor communicates its reservation, if any, on the names.
“There are also 10 names pending with the government which have been reiterated by the Supreme Court Collegium starting from September 4, 2021 to July 18, 2022,” the bench said.
It said among the names, the reconsideration has been sought by the government on cases where despite second reiteration the person was not appointed and consequently, the person concerned withdrew the consent and the system “lost the opportunity of having an eminent designated senior advocate on the Bench”.
It noted that counsel appearing for the petitioner has pointed out that in fact one of the candidates pending for appointment after being reiterated, has even passed away recently.
“In the elaborate procedure from taking inputs from the government post recommendation from the Collegium of the High Court, the Supreme Court Collegium bestowing consideration on the names, there are enough cheques and balances,” the bench said.
It also noted that senior advocate Vikas Singh, who is the president of the Supreme Court Bar Association (SCBA) and had assisted the court in the original matter, has submitted that even the recommendation made for appointment in the Supreme Court more than five weeks ago is awaiting appointment.
“We are really unable to understand or appreciate such delays,” it said, while issuing a “simple notice” to the current Secretary (Justice) and the incumbent Additional Secretary (Administration and Appointment) for the time being.
The bench has posted the matter for hearing on November 28.
The plea said the failure to implement the binding decision of the Collegium headed by the Chief Justice of India, even upon reiteration, would amount to a wilful disobedience of the orders of the apex court.
In its April last year order, the apex court had said the Centre should appoint judges within three-four weeks if the Collegium reiterates its recommendations unanimously.
Coming out with timelines to facilitate the process, it had said the Centre should proceed to make appointment immediately after the apex court Collegium recommends the names and if the government has any reservations on the “suitability or in public interest”, it may send it back to the Collegium with the specific reasons for reservation recorded.