New Delhi: The Supreme Court Tuesday reiterated its displeasure with the Centre’s pick and choose approach in clearing the names of candidates for appointment as judges to the higher judiciary.
The apex court stressed that it hopes that a situation would not come where it or the collegium may have to take some decision which may not be "palatable".
Attorney General (AG) R Venkataramani, representing the Centre, submitted before a bench, comprising Justices S K Kaul and Sudhanshu Dhulia, that "many things have been put on a fast track and may be after a week or ten days things will be better".
To which Justice Kaul said: “As of now there are five names which are pending, second time reiterated now. Apart from that 14 names which are pending….now troublesome aspect of these 14 names is you appointed number 3,4,5 but not appointed number 1, 2. They lose out on seniority, this is not acceptable….I will never be able to suggest to anyone to accept judgeship...who has reasonable practice, why should he put his neck on the block”.
Justice Kaul stressed that sometimes due to intelligence bureau (IB) reports, Centre’s opinion, not even 50 percent names of candidates get cleared for appointment as judges. The AG said some names were expedited. Justice Kaul said, “Some process was expedited, I appreciated that. But this pick and choose….I flag this issue because people who are senior, they will lose out and they will be dropped. There are 14 names of this nature which are pending with you. We have hardly anything pending with us…in Punjab and Haryana High Court, out of 9 candidates we cleared 5 candidates. Two of them we did not clear, two of them we sought further inputs….” The AG said things are happening now (in connection with the appointment of judges).
Justice Kaul said "suppose some name is cleared by you (central government) and suppose the apex court collegium does not clear it, then that should be the end of it and matter should be put to a quietus". He added: "somebody expects to be a judge and we do not accept that, then that should be the end, and this has happened in more than one case. This cannot be the reason other names are stopped, otherwise it becomes like a ping pong ball."
“I pose a question to myself, how do I persuade a young competent lawyer with good practice at the bar to make a sacrifice by accepting a position on the bench. I am unable to say this today," Justice Kaul remarked.
The bench said “selectively from the list cleared by us (the collegium)...some people are appointed and some are not appointed. On transfers (of judges), 16 transfers were issued….” AG said "12 are pending but I think they are getting processed now". The bench said "process means all of them and this selective business is not correct".
Justice Kaul told the AG “Some appointments were to be cleared, even if they were taken a week more, I would not have pressed you for it. This selectively picking and choosing appointments is a troublesome aspect….and transfer is regularly troubling us. Maybe the petitioners are more concerned with the appointment process. First set of transfers took their own few months of time before they were notified”. AG said he will take up the court's concern with the government.
The bench also said elevation of lawyers connected to ruling affiliation should not be resisted unless it is so deep rooted that it affected judicial work. It told the AG: "You have a system of governance where different parties govern different states. Some lawyers recommended, even if they are not politically very active may have some connection with either the ruling dispensation or the government and you still clear it".
Advocate Prashant Bhushan, representing a petitioner, said it is very unfortunate that despite several assurances given by AG, nothing is happening. The AG strongly opposed Bhushan’s submissions. Bhushan said, “please do not try to brow beat me Mr Attorney….your lordship has given the government more than a long rope in the matter. There are instances where reiterations were made several years ago…how long can this go on and they are still segregating….I cannot go on indefinitely….”.
Bhushan said the time has come for lordships to crack the whip otherwise the government is getting the impression that it can get away with anything, “you have to summon the law secretary for contempt or the law minister…let them come and say we have instructions from higher up”. Senior advocate Arvind Datar, representing a petitioner, said it should not need nudging from the court again and again and if a timeline is set then by default, it should be followed.
Bhushan said: “what is being done today by the government is effectively amounting to veto in the selection by the collegium, it is much worse....”. Justice Kaul said there should be an element of trust, once we take cognizance of the government’s concern that should be the end of it. Bhushan said: “your lordships have been far too gentle in this matter…being gentle is not working, for over so many months”.
Justice Kaul said, “difficult for me to change my attitude at the tail end of my career….”.
The bench noted that the AG said he will take up the issue with the government and stressed that it hopes that a situation would not come this court or the collegium may have to take some decision which may not be palatable.
“There are 14 recommendations pending with the government to which there is no response. In the recommendation process recently, selective appointments have been made. We put to AG it is a matter of concern however emphasized on numerous occasions. If some appointments are made and some not, the seniority is disturbed….”, said the bench.
The bench said there also five names pending, either second time reiteration or otherwise pending for quite some time. AG requested the court for some more time to have a fruitful discussion with the government. After a detailed hearing in the matter, the bench scheduled it for further hearing on November 20.
The apex court was hearing pleas filed by the Advocates Association Bengaluru and Centre for Public Interest Litigation over delays in appointing judges.
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