SC Seeks Attorney General's Assistance On Plea Against Delaying Judges' Appointments Despite Collegium Recommendation

The Supreme Court, on Friday, issued notice in a Public Interest Litigation 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.

After considering a Public Interest Litigation (PIL), the bench consisting of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra, deemed it necessary to seek the guidance of Attorney General R. Venkatramani in the matter. Consequently, the bench 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.  List on 08 September 2023."

The PIL filed by Advocate Harsh Vibhore Singhal, who appeared in person, 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]

Click here to read/download the Order