Don’t overlook or withhold names recommended for appointment as judges: Supreme Court collegium to govt
The collegium’s resolution, published on the court website, underlined that selective appointment of judges from a list of names recommended by the collegium leads to loss of seniority of the candidates, which is not only “unfair” but also “against the settled convention”
New Delhi: The Supreme Court collegium on Wednesday said the Union government’s decision to delay the appointments of some judges, while promptly appointing others whose names may have been recommended later, “disturbs seniority” and termed it a matter of “grave concern”.
The collegium, which sends names of the chosen judges to the government which is bound to appoint them, although there is no time specified under which this has to be done, expressed its displeasure at the segregation of names and selective appointment of judges by the Union government, and urged the Centre to not withhold or overlook recommendations.
The collegium’s resolution, published on the court website, underlined that selective appointment of judges from a list of names recommended by the collegium leads to loss of seniority of the candidates, which is not only “unfair” but also “against the settled convention”.
The collegium, comprising Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul and KM Joseph, cited the specific case of a Christian lawyer whose name was reiterated in January but the government chose to ignore it even as it cleared five fresh names for appointment as judges of the Madras high court.
For appointments to the high courts, the Supreme Court collegium consists of the CJI and the two other most-senior judges. The collegium, however, expands to the first five judges (including a future CJI) for appointments to the top court.
“The collegium is of the considered view that necessary action for the issuance of a notification for the elevation of persons who have been recommended earlier in point of time should be taken at the earliest, including the name of Shri R John Sathyan, which has been reiterated by this Collegium on 17 January, 2023,” stated the resolution of the collegium meeting, held on Tuesday afternoon.
“The names which have been recommended earlier in point of time, including the reiterated names, ought not to be withheld or overlooked as this disturbs their seniority whereas those recommended later steal march on them. Loss of seniority of candidates recommended earlier in point of time has been noted by the collegium and is a matter of grave concern,” it added.
The collegium’s criticism of the government has come days after Union law minister Kiren Rijiju said that is no confrontation between the judiciary and the executive, while emphasising that judges cannot be appointed through judicial orders and that it has to be done by the government.
Speaking at an event in Delhi on March 18, Rijiju refrained from making comments on any names that were reiterated by the collegium but are yet to be cleared, but stressed that the Constitution prescribes that the government ought to have the “last word” in judicial appointments.
Speaking at the same event later, CJI Chandrachud emphasised that the collegium system was devised to ensure independence of judiciary and to insulate it from outside influences. Adding that the collegium system follows a set of well-defined parameters for selecting judges, the CJI said that the judicial appointment process has to be completely transparent in order to foster greater confidence of citizens.
Under the memorandum of procedure (MoP) that guides the judicial appointments, the government can only object once if it does not agree with the collegium’s recommendations, but is bound by the decision after the names are reiterated.
On Tuesday, the collegium also made fresh recommendations for the appointment of senior advocate HS Brar as a judge in the Punjab & Haryana high court, and four judicial officers as judges in the Madras high court. At the same time, it pointed out that the government is yet to appoint advocate Ramaswamy Neelakandan as a judge in the Madras high court despite a recommendation on January 17. If the names being proposed now are appointed before Neelakandan, the collegium, said the lawyer would rank junior to younger judicial officers.
“Such a deviation in seniority would be unfair and against the settled convention. Hence, while recommending the name of Shri K Rajasekar (one of the judicial officers recommended on Tuesday) for elevation, the collegium is of the view that his appointment should be notified after the appointment of Shri Ramaswamy Neelakandan is notified,” it said.
The maelstrom in February over advocate LC Victoria Gowri’s appointment as a judge in the Madras high court -- it was opposed by a group of advocates from Chennai whose petitions were later dismissed by the Supreme Court -- overshadowed the government’s decision to not follow the collegium’s recommendation to give precedence to elevating Sathyan, whose name was proposed for the second time on the same day that Gowri’s name was sent.
Keeping Sathyan’s name pending meant that the lawyer’s seniority as a judge was affected with Gowri and four others being were sworn-in as additional judges of the Madras high court on February 7.
On January 17, the Supreme Court collegium reiterated Sathyan’s name for appointment in the Madras high court, repelling the Centre’s endeavour to stall his elevation over two posts that Sathyan had shared on social media. One of these posts was an article critical of Prime Minister Narendra Modi and the second one pertained to a girl student committing suicide in 2017 after she was unable to clear NEET.
Stressing the importance of free speech, the collegium maintained that sharing of the posts “will not impinge on the suitability, character or integrity of Shri Sathyan” as it stood by its initial recommendation dated February 16, 2022.
“Sathyan is fit and suitable for being appointed as a Judge of the Madras high court...The Collegium further recommends that he be given precedence in the matter of appointment as judge over certain names separately recommended today (Gowri, four other lawyers and three judicial officers) by this collegium for appointment as judges of the Madras high court,” the collegium’s resolution said in January.