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New Delhi: Faced with the Union government’s inaction over filling up more than 110 higher courts’ vacancies for judges, the Supreme Court collegium on September 1, 2020 reiterated its recommendations for judicial appointments in higher courts for the second time in a matter of months.
The government’s delay in clearing the collegium’s recommendations invited criticism from the Chief Justice of India himself. The Sunday Express reported that Chief Justice of India N.V. Ramana, in a speech made at a function on October 2, said that despite the collegium having recommended appointees for 106 positions of different high court judges and nine chief justices to the Union law ministry since May this year, the government has cleared the names of only seven for judges and one for chief justice so far. The news daily in a separate report also said that the rare reiteration by the collegium was made on September 1, 2021 in regard to the delayed appointments of advocates Nagendra Ramachandra Naik and Aditya Sodhi as judges of the Karnataka high court.
The government’s delay in clearing the collegium’s recommendations marks a crucial departure from the Memorandum of Procedure (MoP) that lays down the process of higher judiciary’s appointments. According to the conventions laid down by the MoP, the government is bound to accept the recommendations of the collegium, mandating the Union law ministry to clear the names “as early as possible, preferably, within three weeks” and seek President’s sanction.
A nine-judge constitutional bench in the 1993 Second Judges case (The Supreme Court Advocates-on-Record Association Vs Union of India) first evolved the collegium system in the spirit of protecting judiciary’s independence from the influences of the political class. The landmark 1998 Third Judges case then went on to assert that the court’s recommendations will have the final say in judicial appointments. Currently, the collegium comprises the CJI and four other senior-most judges of the Supreme Court.
The 1998 Third Judges case, on which the MoP has been laid down, makes a pointed interference for instances when the government and the judiciary may differ with each other.
“Non-appointment of anyone recommended, on the ground of unsuitability must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. If the Chief Justice of India does not find it necessary to withdraw his recommendation even thereafter, but the other Justice of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person for reasons to be recorded, may be permissible in the public interest. If the non-appointment in a rare case, on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment. However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made,” the court had ruled.
Against this backdrop, CJI Ramana, while addressing a gathering at the launch of the ‘Pan India Legal Awareness and Outreach Campaign’ of the National Legal Services Authority (NALSA), said, “I expect that the government will clear the rest of the names very soon…these appointments will take care of pendency to some extent…I seek the cooperation and support of the government to enable access to justice and to strengthen democracy”.
Justice Ramana, however, added that Union law minister Kiren Rijiju, who was also present at the occasion, has “informed the rest of the things are going to come in a short time, within one or two days”. President Ram Nath Kovind; Justice U.U. Lalit, Supreme Court judge and executive chairman of National Legal Services Authority; Supreme Court judge Justice D.Y. Chandrachud; and Justice A.M. Khanwilkar also addressed the Vigyan Bhawan event.
The September 1 Collegium’s reminder came in the context of non-appointment of judges in the Karnataka high court. The Union law ministry has been sitting on the appointment of Nagendra Ramachandra Naik, a senior advocate in Bhatkal, Karnataka, since October 3, 2019 when the collegium first recommended his name along with eight others. The government cleared all names but Naik’s. Naik was appointed a CBI counsel during the Congress-led UPA government.
The collegium reiterated its recommendation first on March 2, 2021, before doing so again on September 1.
Similarly, Aditya Sodhi, a graduate of the National Law School of India University, Bangalore who was the additional advocate general under the Congress-ruled Karnataka government in 2016, has also failed to get government’s clearance. His name was recommended on February 4, 2021 and was reiterated by the collegium first on August 4.
The legislature-judiciary’s face-off arising out of the Union government’s record of being selective in giving its clearance, that is supposed to be merely a technical formality in its case, received mixed responses from jurists.
Speaking to the Indian Express, senior advocate Harish Salve said that the MoP was not “set in concrete”. “The MoP governs the process but is not set in concrete. It does not mean that it should be implemented the same way, say like the Income Tax Act,” he said.
Former Supreme Court judge Justice Madan Lokur said that MoP stood diluted by such government’s delay. “Unfortunately but undoubtedly, yes,” Justice Lokur said on whether the MoP stood diluted. He indicated that the such deviations from the landmark judges’ cases have hurt MoP “sanctity”, and that the “the judiciary must be firm” about the collegium’s recommendations to prevent such departures from the laid down conventions. He said that the SC should now not take more than a day to assert its stand on the recommendations.
The Indian Express report said that, in the recent few years, there have been at least three instances when the collegium has had to reiterate its recommendations more than once.
“On September 16, the Collegium recommended names for Chief Justices of eight high courts – Calcutta, Meghalaya, Karnataka, Madhya Pradesh, Himachal Pradesh, Allahabad, Karnataka and Chhattisgarh — but these are yet to be cleared. As for judges, the Collegium had recommended names of judicial officers and advocates for elevation to the High Courts of Madhya Pradesh, Gauhati, Allahabad, Calcutta, Karnataka, Punjab and Haryana, Chhattisgarh, Jammu and Kashmir, Kerala, Madras, Jharkhand, Patna, Gujarat, Orissa and Bombay,” the daily reported.
Although the MoP gives enough space for mutual discussions, the court is conventionally empowered to have a final say. However, some deviations from the laid down system have begun to be questioned because of certain past decisions of the collegium. Justice Lokur’s contention that the MoP “has no sanctity left” arises from instances when the collegium has buckled under the government’s pressure. The most recent example is when the collegium modified its recommendation in the appointment of Bombay high court judge Justice Akil Kureshi.
Justice Kureshi, who is also famous for remitting the current Union home minister Amit Shah in 2010 to police custody for two days in the Sohrabuddin case, was first recommended by the collegium as the Chief Justice of the Madhya Pradesh high court. Following the Union government’s written objections over his name, the collegium then recommended his name for the Chief Justice of a much smaller Tripura high court.
In some other cases, the government’s extraordinary delay in accepting the recommendations has also caught attention. The government appointed Karnataka high court Judge Krishna Bhat only after a three years delay between 2016 and 2018, with the collegium reiterating its recommendations thrice. Bhat had faced an internal inquiry for alleged sexual harassment charge after his name was first recommended. Similarly, the government also delayed its clearance in the appointment of Allahabad high court advocate Amit Negi, whose name was first recommended by the collegium in August 2016. His name was reiterated twice in November 2016 and August 2018, reported the daily, adding that the collegium in January 2019, eventually withdrew its recommendations after considering government’s objections.
Similarly, Calcutta high court advocate Sakya Sen’s appointment is yet to happen despite the collegium having first recommended his name in December 2017. In August 2018, the collegium sent his name back to the high court for reconsideration. After the Calcutta high court recommended him again, the collegium approved his name and sought government’s clearance.
The Department of Justice pegs the total number of judicial vacancies at 471 in high courts as on October 1, 2021.