The Supreme Court panel may have defied the government while insisting on “particular names” for elevation as apex court judges, but the government still has options to deal with the matter.
Legal experts say it could seek reasons from the panel on why it is taking such a step or it could even put the file in deep freeze.
On Tuesday, the five-member judges’ panel, headed by the Chief Justice of India, sent — for the second time — the names of three high court chief justices for promotion as Supreme Court judges.
It has refused to accept the government’s suggestion that seniority, regional and gender representations be taken into account when recommending names for promotion.
Last week, the government declined to forward the names sent by the panel to the President for final approval.
According to the rules, the government may return the names for reconsideration to the panel only once. If they are recommended for the second time — as in the present case — it is bound to accept them.
The Law Ministry refused to comment on whether the President still had the option to return the file for reconsideration. “Technically, the file did not reach the President, since it was returned by the Prime Minister’s Office, but nothing further can be said,” sources said.
Talking about the impasse, veteran jurist and former law minister Ram Jethmalani said: “The present procedure for judges’ appointments and promotions is based on a 1993 Supreme Court judgment. It had clearly stated that the names would be agreed upon by proper consultation.”
“The government has a right to seek reasons for the basis on which names were recommended, while other were overlooked, since there has been no consultation at all,” he added.
Former CJI V.N. Khare said the conflict could have been avoided “by discussing such important matters with the government at the highest level, before sending the names”.
Senior SC lawyer Rajeev Dhawan said the dispute was now “in the open,” and both sides would want to assert supremacy, the government can put the file in cold freeze — it can sit on the file, as it does not have a deadline to approve the names.
“The judiciary should rise to the occasion and make public the reasons for its decision, otherwise the veil of secrecy can also be used by the government to its advantage.”