Deviating from an established practice, the government has returned twice to the Supreme Court collegium a recommendation made by it.
The collegium headed by Chief Justice of India TS Thakur has stood by its recommendation to appoint an additional judge to the Patna high court, overruling the government’s objections on both the occasion.
Highly placed sources in the government said on Wednesday that in November, 2013 the collegium had recommended appointing a member of the state judicial services as additional judge to the Patna high court. But the government had then returned the file to the collegium requesting it to “reconsider” the decision. The government’s move was based on an Intelligence Bureau report.
In between, as the file was pending with the government, the National Judicial Appointments Commission Act was notified on April 13, 2015.
But when the new law which sought to overturn the collegium system was struck down by the Supreme Court on October 16 last, the old system of appointing judges to the apex court and the 24 high courts made a comeback.
After the return of the collegium system, the Law Ministry decided to look into the past recommendations made by the collegium. it was then decided to return the file of the collegium recommendation back to the CJI in March, 2016, requesting it to once again reconsider its decision.
But the collegium once again reiterated its recommendation in April.
Under the present scheme of things, if the collegium reiterates its recommendation, the government has to make the appointment. But at the same time, the government is free to “sit on the file” for as long as it wants and delay the appointment as there is no stipulated timeline.
As per the draft revised memorandum of procedure -- a document which will guide future appointment of judges to the Supreme Court and the high courts -- once the Centre has rejected a recommendation it will not be bound to reconsider it even after reiteration by the collegium.
But the collegium which examined the memorandum of procedure has questioned the clause. The document has since been returned to the government by the collegium.