Appointment of judges: Make sure most of what is expected is done, SC tells Centre

Advocate Prashant Bhushan, appearing for one of the petitioners, told the bench that some appointments are being selectively notified while some are being kept pending.

New Delhi: The Supreme Court on Monday said that it still has some concerns regarding the appointment of the judges and told the Central Government to "make sure what is expected is done".

A bench comprising Justices Sanjay Kishan Kaul, Manoj Misra and Aravind Kumar was hearing a contempt petition filed by Advocates Association of Bengaluru against the Central Government over the delay in approving collegium recommendations. On the last occasion, the Court had expressed displeasure at the Centre for not notifying the transfers of High Court judges proposed by the collegium

Today, the bench noted that there have been some "developments" after the last hearing, as several appointments of Supreme Court judges, High Court Chief Justices and High Court judges were notified by the Centre in the meantime. However, Senior Advocate Arvind P Datar, assisted by Advocate Amit Pai, told the bench that the Centre has withheld approval for certain proposals, while approving other proposals made by the collegium on the same day

Datar told the bench that a chart has been produced detailing the status of different recommendations, which will indicate that the certain proposals have been kept pending. The senior counsel specifically mentioned the case of Justice K Vinod Chandran of Kerala High Court. Although the Centre has notified the appointment of Justice Sandeep Mehta as the Chief Justice of Gauhati High Court, it has not approved the proposal made on the same day to elevate Justice Vinod Chandran as Patna high Court's Chief Justice, Datar pointed out from the chart.

"In some cases, the recommendations made of February 7 and 9 have been approved in 2-3 days. But some appointments have not been done. In the case of Mr.Vinod Chandran...." Justice Kaul then interjected to say that in cases where the consent of the State Government was obtained soon, the appointments have been made.

"State Government's consent has to be obtained. If the State Government is prompt in giving consent, then one of the notifications have come very early. For example, in serial number 4 (Justice Sandeep Mehta), it appears that the consent must have been immediately sent "Then I take it that in the all the case the delay is on the part of the State Government's consent. Perhaps that is the only explanation", Datar replied.

Since the Attorney General for India was not available today, short adjournment was sought on his behalf. Advocate Prashant Bhushan, appearing for the Centre for Public Interest Litigation, raised the issue of Centre not acting upon recommendations which have been reiterated by the collegium. Justice Kaul said that this issue was flagged during the previous hearings as well.

"I am also concerned with some issues. Issues are more than one...",Justice Kaul said.

"This can't go on endlessly like this", Bhushan replied. "Exactly, I can assure you that we are equally concerned with what is happening", came Justice Kaul's reply. "At some point your lordships will have to crack the whip. Otherwise this will go endlessly like this. Some appointments selectively they notify, others they don't do anything about. Transfer they don't do anything about",Bhushan urged.

On an earlier hearing, AG R Venkataramani had assured the Court that the timelines on judicial appointments will be followed and the pending collegium recommendations will be cleared soon.

Previously, the Court had expressed dismay over the Law Ministers' comments against the collegium system. The Court had also urged the Attorney General and the Solicitor General to advise the Centre to follow the law laid down by the Court regarding judicial appointments. The Court reminded that names reiterated by the Collegium are binding on the Centre and that the timelines laid down for completing the appointment process are being breached by the executive.

While expressing a serious concern that the delay in appointments "frustrates the whole system", the bench also flagged the issue of Centre "splitting up collegium resolutions" as it disrupts the seniority of the recommendees. On Nov 11, criticizing the Centre for delaying the appointments, the Court had issued notice to the Secretary (Justice).

"Keeping names pending is not acceptable. 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.", the bench noted in the order.

The Bench observed that in the cases of 11 names which have been reiterated by the collegium, the Centre has kept the files pending, without giving either approval or returning them stating reservations, and such practice of withholding approval is "unacceptable".