Centre's Inaction On Collegium Recommendation For Transfer Of Some Judges- Apex Court Warns Of Action That Will "Embarrass Those Judges" And "Dilute Their Authority"
On the Center's inaction on the names of High Court Judges recommended by the Supreme Court Collegium for transfer to other High Courts, the Supreme Court today warned that it is contemplating action that will embarrass those Judges who have been recommended by the Collegium for transfer and will also "dilute their authority" to work in whichever High Court they are transferred to.
Stating that these are not antagonistic issues but necessary for the system, the Supreme Court today once again urged the Central Government to expedite its process of acting upon the names recommended by the Collegium for transfers and judicial appointments.
On the issue of the transfer of Judges, Justice Kaul told the Attorney General, "You see what will happen at some stage is that we can't let Judges, whom we think should not work in 'A' Court continue to work. Which will mean, again something which is not very pleasant, I will not like to say, and you understand the consequence. If it is driven to that, that is what will happen. It will embarrass those judges if we do that. I won't like to do that because they have to go and work in some other Court. You understand the step which is in contemplation or which will happen. Please don't let that happen. It will dilute the authority of those Judges, to work wherever they go, were we to take such a step".
The Supreme Court was dealing with a batch of Petitions highlighting the alleged delay by the Central Government in acting upon the names recommended by the Collegium for judicial appointments. On the last date of the hearing, the Court had cautioned the Government, while expressing the hope that the situation does not deteriorate to the point where the Court will have to decisions that may be deemed contentious.
The Bench of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia today reiterated to the Attorney General R. Venkatramani appearing for the Union of India, that the delay in appointment is upsetting the seniority. Justice Kaul stated, "What is troubling is that even now not even 50% of names are cleared. Out of that also you detained 8 names which upset the seniority. These dynamics must improve."
On the other hand, appearing for the Petitioners, Senior Advocate Dushyant Dave stated, "Time has come when the lordships may issue a mandamus directing that all these names should be cleared within 24 hours. Let there be a mandamus to reiterate the 1992 mandamus." Referring to the Second Judges' Case, Dave stated that the Court had in that case prescribed a timeframe. "Now lordships have to just say categorically that all constitutional authorities must be conscious", added Dave.
Flagging the pending issues, the Court in its order noted, "Out of the pending 11 names where the Judges had to be shifted from one Court to the other, 5 have been transferred but 6 transfers are still pending: 4 from Gujarat, 1 from Allahabad and 1 from Delhi."
The Court further noted, "Out of the recently recommended names, 8 candidates have not been cleared and appointed. Some of these people are seniors to others who have been appointed. This is something on which we have commented earlier if a candidate does not know at what seniority he will stand as a Judge, it becomes difficult to persuade other eligible and deserving candidates".
Fllaging the other aspect of pending consideration, the Court noted, "There are 5 older recommended candidates but neither have the names come back with any comment nor has there been any progress. There are other 5 older names where the names have either been reiterated once or reiterated twice. There are 3 candidates recommended in the month of July, where the expected timeline is over for the names to be sent back with inputs to the collegium. Out of which 2 of them are from Jammu and Kashmir."
Justice Kaul also clarified to the AG that the Court has only flagged the issues where the timeline has lapsed. "I am only flagging the pending issues. Where the timeline doesn't collapse, I don't flag them", stated Justice Kaul.
The Court also expressed apprehension on the names pending for transfer. Justice Kaul stated, "We thought okay that it's a past problem. We have past baggage but the current baggage should not accumulate with the past baggage. You can say that in at least Punjab and Haryana High Court where I have been, I broadly know the Bench. I did not want to say, two of the candidates not cleared are both Sikhs. Look at the problem. Why should such a scenario arise where we have to even check these things? We were trying to clear the past problems but now we have further problems."
Justice Kaul stated, "These are not antagonistic issues which are being taken up but for the system it is necessary." Accordingly, on the request of the AG to adjourn the matter, the Court ordered, "Learned Attorney General request for the matter to be taken after some time and assures that this Court will not be disappointed. Looking at the effort the Attorney is making, list it on 5th December."
Further on the pendency of the appointment of the Judge for the Gauhati High Court, Justice Kaul stated, "In Gauhait the oath was not taken, I commented and the Government took cognizance of it". The Court also in its order noted, "We may record that in Gauhati, one of the senior candidates, a designated senior advocate was in the first instance not cleared. This was taken up on a very serious note and ultimately the oath to the others was delayed for some time to facilitate the government to issue a warrant of appointment of the said person."
After the hearing in the case, in a lighter vein, Senior Advocate Dave quipped that it might be high time to file a petition seeking that all the appointments and transfers of high government officials should now require clearance from the Court. Only then, he joked, would the government appreciate why clearance should be made fast.
Cause Title: Advocates Association Bengaluru v. Barun Mitra And Anr. [CONMT.PET.(C) No. 867/2021 in T.P.(C) No. 2419/2019]