"Idea Is Not To Unearth Skeletons In Cupboard": SC Seeks Tabulated Chart From Centre With Reasons For Delay In Appointment Of Reiterated Names
The Supreme Court has sought a detailed response from Attorney General R. Venkataramani regarding the delays in notifying judicial appointments recommended by the Collegium after the AG requested an adjournment due to his health reasons.
The Bench of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra was hearing a Public Interest Litigation (PIL) that seeks a time-bound process for clearing collegium resolutions.
The Bench also considered a contempt petition filed by the State of Jharkhand against the Centre for delaying the appointment of the Chief Justice of the Jharkhand High Court.
During the hearing, Attorney General (AG) R Venkataramani, appearing virtually, requested an adjournment due to health reasons.
The Bench agreed to adjourn the matter for a week, with CJI Chandrachud noting that several Chief Justice appointments were "in the pipeline."
At the outset, the CJI said, "Last week, the AG was here. He is still on the screen today (video conference). Let's wait for a little while, some of these appointments are expected to be cleared probably. Let us just push it back to next week."
Senior Advocate Kapil Sibal, representing the State of Jharkhand, highlighted the significant delays in appointing judges, including the case of Justice Sarangi, whose delayed appointment as Chief Justice of the Jharkhand High Court resulted in only a month in office.
However, Sibal agreed with the CJI. "Alright, let's push it to next week," Sibal submitted.
Meanwhile, Advocate Prashant Bhushan mentioned a petition filed by Common Cause in 2018 and pointed to pending reiterated names, citing the example of Senior Advocate Saurabh Kirpal, whose appointment as a Delhi High Court judge was reiterated by the Collegium in January 2023.
The CJI asked the AG to submit a chart detailing all pending reiterated names and the reasons for the delay in appointments. "The collegium is not a search committee," the CJI emphasized, underscoring the constitutional importance of collegium recommendations.
Additionally, the CJI said, "Ultimately, the idea is not to unearth skeletons in the cupboard, but to move forward. So, you know, the business of governance proceeds. That's all."
The AG agreed to provide the chart but expressed concerns about how far the Court could intervene in such matters. He also indicated that he would challenge the maintainability of the Writ Petitions. "I will file written submissions, opposing the maintainability of such petitions," the AG contended.
The Court, meanwhile, agreed to hear petitions filed by Common Cause and the State of Jharkhand, both of which seek judicial accountability for delayed appointments.
Earlier, in the morning, the AG had mentioned the matter before the Bench and had sought an adjournment as he was not well today. He submitted that he wishes to file a response and sought time to do so.
To this submission, Advocate Harsh Singhal contended, "There is absolutely, no problem that the learned AG is unwell. The only problem is seeking adjournments. With due respect, I don't know what the Centre likes to achieve, something that has not been achieved in the several years.."
Thereafter, the CJI had said, the matter will be taken up in its turn.
Pertinently, on August 18, 2023, the Court had issued notice in the PIL challenging the delay or denial in notifying the appointment of any judge as per the final recommendation made by the Supreme Court's Collegium under Article 124(2), 217(1), and 222(1) of the Constitution and the Second Judges Case. The Court had deemed it necessary to seek the guidance of Attorney General R. Venkatramani in the matter. Consequently, the Bench had issued an order stating, "A copy of the petition be served on the office of the Attorney General for India. We request the Attorney General to assist the Court."
The PIL filed by Advocate Harsh Vibhore Singhal challenges the alleged propensity of the Central Government to render the laws regarding the appointment of judges otiose, besides defeating Articles 14, 19, and 21 of the Constitution by the arbitrary discretion to selectively and arbitrarily delay issuing notifications for appointments despite the final recommendation by the Supreme Court's Collegium (SCC).
"That ‘notification’ is not making an appointment; the SCC already makes the appointment. Notification is just an administrative formality", reads the PIL. Singhal also states that there is no contemplation in the Second Judges Case for discretion as to whether to notify appointments or not or by when to do so. The Central Government is under the duty to appoint per SCC’s final recommendation, and no discretion—expressly or deductively—is available to them to do otherwise, as per the petitioner.
"A judge is entitled to be sworn into office as judge once the SCC finally recommends him. The respondent cannot arbitrarily take away or rescind such entitlement since the respondent cannot further approve the appointments failing which the SCC recommendations can fail. Therefore, any delay or denial in notifying his appointment violates his fundamental rights under Art. 14, 19 and 21 to be appointed as a judge. This is the intent, meaning, and purpose of the law behind the Second Judges Case," submits Singhal.
The Petitioner further states that it is necessary for the Court to stretch its arms long enough to fetter discretion and exercise its powers under Article 142 to fix a fixed time period for the respondent to object to any SCC recommendation by such period and a fixed time period to notify appointments per recommendation not objected to and final recommendation.
Further, emphasizing on the Second Judges Case, it is highlighted in the plea that, "It is not the intent of the Second Judges Case: a. That appointment depends upon the discretion of the respondent such that until notified, the SCC’s recommendations are infructuous, otiose and redundant; b. That respondent can selectively notify appointments, cherry-picking some and discarding others per arbitrary and unilateral elastic discretion; c. That respondent can re-define seniority of judges by selectively notifying appointments for some and delaying/not notifying for others".
It is also said in the petition that on February 23, 2018, the Supreme Court ‘took exception’ to the government's tendency to slow down the process of appointments of judges and called for a time frame to “keep hope and aspirations of litigants for speedy justice alive.” In December 2019, the Court sought answers on 213 appointments pending notification while the Government did nothing to ameliorate and remedy.
Similarly, the petition states that on March 25, 2021, a bench of the then CJI S.A. Bobde, Justice Surya Kant, and Justice Sanjay Kishan Kaul, lamented that some recommendations were pending for more than 19 months. The Bench said, "This has gone beyond any degree of reasonable time period. There seems to be no time limit within which this is being done. Once we reiterate the same names, you will have to appoint."
"The Court cannot keep coaxing, cajoling, exhorting or admonishing, persuading or cautioning the respondent through the Ld. AG to prevail upon the respondent to notify pending SCC recommendations. This is unthinkable. It is time that the Court use its powers under Art. 142 to fix this odious malady of interference and infiltration into its hallowed space by fixing a fixed time period for notifying all judicial appointments. There is no other solution!", reads the PIL.
Cause Title: Harsh Vibhore Singhal v. Union Of India [Writ Petition(s)(Civil) No(s). 702/2023]