‘Best left unsaid’: SC judge after case on appointments deleted

Over the last few hearings, the bench has repeatedly reproached the Centre for sitting over several collegium’ recommendations

The hearing of the case relating to delays by the Union government in processing the collegium’s recommendations on judicial appointments could not take place on Tuesday after it was abruptly dropped from the list of business even as the judge leading the bench clarified that though he was willing to hear the matter, “some things are best left unsaid”.

The court hearings marked the long-running standoff between the judiciary and the executive on a timeline for appointment to constitutional courts (HT file photo)

The case was listed before a bench of justices Sanjay Kishan Kaul and Sudhanshu Dhulia, which has been monitoring the steps taken by the Centre in acting on the collegium’s recommendations for appointing and transferring judges.

Justice Kaul demits office on December 25. However, his last day in office will be December 15 (Friday) because the Supreme Court goes on a winter break starting December 18 (Monday next). It is likely that justice Kaul may not hear the case again before his retirement and the matter will be listed before a new bench in January.

Over the last few hearings, the bench has repeatedly reproached the Centre for sitting over several collegium’ recommendations while also calling the latter’s selective decisions on appointment and transfer of judges “troublesome”.

The court hearings marked the long-running standoff between the judiciary and the executive on a timeline for appointment to constitutional courts. The government was expected to revert on Tuesday with the status of over two dozen recommendations that the collegium has made over different points in time.

While the case appeared in the list of business published on Monday evening – as directed by the bench on the last date of hearing on November 20 -- it was later dropped from the list.

Wondering over the development, advocate Prashant Bhushan complained that the case was suddenly deleted from the list. Responding, justice Kaul said that the deletion was not at the instance of his bench.

“I will just say one thing. I have not deleted the matter,” the judge told Bhushan, who replied that the court must ask for an explanation from the registry for deleting the matter despite a specific directive on November 20 for listing it on December 5.

“ (I) had not deleted it or expressed unwillingness to take it up...I am sure the Chief Justice is aware of it (deletion)...Yesterday evening, I found it was deleted. I checked up,” justice Kaul told Bhushan.

The lawyer called it “very strange” and “unusual” that a matter was deleted notwithstanding a judicial order.

“Some things are best left unsaid sometimes. I clarify that it is not that I have deleted the matter or that I am unwilling to take the matter – both,” said justice Kaul.

Advocate Amit Pai, who appears for the petitioner, Advocate Association, Bengaluru, submitted that he would raise the issue before the Chief Justice of India.

When this matter was taken up on October 9, the court observed that the collegium’s recommendations could not remain in “limbo”, emphasising that instead of sitting on them indefinitely, the government must either notify those appointments or send them back citing specific objections. Attorney general R Venkataramani, representing the government, assured the court of some concrete steps.

Subsequently, the government on October 16 notified the transfer of the much-delayed appointment of Delhi high court judge Siddharth Mridul as the new full-time chief justice of the Manipur high court, more than three months after the collegium’s recommendation. Three judges in the high courts of Madras, and Manipur, including a judicial officer who would become the first woman from a scheduled tribe to become a judge in the Manipur high court, were also appointed on October 13.

During the proceedings on November 7, the bench said that the government must stop picking and choosing from a set of collegium’s recommendations, adding that the “business of selective appointments has become troublesome” when an “element of workable trust” was required between the executive and judiciary.

While the memorandum of procedure (MoP), which guides the judiciary and the government in matters of the appointment and transfer of judges, is silent on the segregation of names by the latter, a former CJI had disapproved of this practice.

On November 20, the bench flagged that “pick and choose” for appointing and transferring judges “sends a wrong signal,” adding the court will continue its monitoring not because it wants to take an antagonistic stand against the government but because it is “necessary for the system”. On the day, the court recorded in its order that six transfers were still pending. The order added that while eight candidates have not been appointed from recommendations made since July, five reiterated names and five names recommended for the first time are also pending.