Not a search panel’: SC wants govt clarity on collegium picks

The bench asserted that the collegium’s recommendations are not merely suggestions but carry constitutional weight

The Supreme Court on Friday asked the attorney general (AG) to provide a detailed chart of the candidates whose names have been reiterated by the collegium for appointment as judges but have not yet been cleared by the Union government, marking a crucial intervention in judicial appointments that are typically handled on the administrative side between the judiciary and the executive.

The latest move by the top court came during the hearing of a public interest litigation seeking directions to the Centre to clear collegium resolutions in a timebound manner. (HT File)

Acknowledging the growing concern over delays in judicial appointments, a bench led by Chief Justice of India Dhananjaya Y Chandrachud asked AG R Venkataramani to provide a comprehensive tabulated chart detailing the names of the candidates reiterated by the collegium, alongside the reasons for the delay in their appointments.

“Mr Attorney General, come out with a chart and tell us what is the status of the recommendations which have been reiterated by the collegium and what is the difficulty in making those appointments,” the bench, also comprising justices JB Pardiwala and Manoj Misra, said.

The bench further asserted that the collegium’s recommendations are not merely suggestions but carry constitutional weight, distinguishing them from recommendations made by search committees, which can be subject to acceptance or rejection.

During the hearing, Venkataramani questioned the extent to which such matters could be taken up by the judicial side and the details that could be put out in public domain, but the bench replied: “Ultimately, Mr Attorney General, the idea is not to unearth skeletons in the cupboard but to move forward. The business of governance must proceed.”

While agreeing to provide the requested chart, Venkataramani expressed reservations about the extent of the court’s intervention in what he described as a “sensitive process” involving multiple considerations. He emphasised that each case of a delayed appointment comes with its unique set of complexities and factors, suggesting that the court’s involvement in such matters might be limited. The bench, however, remained firm that the AG should come back with a tabulated chart next week.

The Supreme Court’s directive is significant because it steps beyond the administrative confines and brings the issue directly into the judicial realm, pushing for transparency and accountability in the appointment process for the judges of constitutional courts.

The Supreme Court’s decision to scrutinise the Union government’s handling of reiterated recommendations is also a critical step in upholding the principles established by the judiciary itself. According to the landmark judgment in the Second Judges Case (1993), once the collegium reiterates a recommendation, it becomes binding on the Union government, leaving no scope for further delays or rejections.

This is not the first time the Supreme Court has been compelled to intervene in judicial appointments. In 2022-2023, a bench led by justice Sanjay Kishan Kaul (now retired) had dealt with cases filed by the Advocates Association of Bengaluru and Common Cause, addressing the persistent delays in the appointment of judges. Justice Kaul’s bench had issued several stringent directives to the Centre, emphasising the need to expedite the appointment process and warning against any attempt to undermine the collegium’s authority.

Justice Kaul’s observations were crucial in bringing to light the recurring issue of delays, as the Centre often cited various reasons for the prolonged clearance of names, including security clearances and objections raised by intelligence agencies. The court’s strong stance during those proceedings resulted in the eventual clearance of several pending appointments, but the problem has persisted, necessitating further judicial scrutiny. This case was not taken up by the Supreme Court after justice Kaul’s retirement in December 2023.

In 2014, the National Democratic Alliance government passed the National Judicial Appointments Commission (NJAC) Act, setting up an alternative system for the appointment of judges to constitutional courts which also proposed a greater role for the government in the process. But, in 2015, the Supreme Court struck down the law for being unconstitutional because it sought to tinker with the independence of the judiciary.

Since the NJAC verdict, the relationship between the judiciary and the executive has remained fraught, with tensions often surfacing over the MoP — the document that outlines the process of judicial appointments. Despite several rounds of discussions, a new MoP has not been finalised, leading to frequent deadlocks and delays in judicial appointments. The executive has raised concerns about the lack of transparency in the collegium system, while the judiciary has resisted any perceived encroachments on its independence.

Advocate Prashant Bhushan, representing Common Cause, sought to intervene in the matter, highlighting that many reiterated names remain stuck with the government, including that of Kirpal, whose appointment as a judge of the Delhi high court was reiterated by the collegium in January 2023.

Bhushan argued that the government’s failure to act on reiterated recommendations could undermine the judiciary’s independence, as such inaction effectively stalls the appointments process. He argued that some recommendations were pending for over six weeks without a response, contrary to established norms. “Otherwise, they can frustrate the recommendations of the collegium by just sitting on them, without responding,” Bhushan stated, underscoring the need for a timeline to ensure compliance.

Senior advocate Kapil Sibal, appearing for Jharkhand, complained against the delay on the part of the Centre to act on the collegium’s July recommendation for appointing the chief justice of the state high court. The position has remained vacant since December last year and was briefly filled for just 15 days over the past nine months.

Responding, the CJI said that some appointments of high court chief justices are likely to happen shortly. “Some appointments are in the pipeline. We expect those appointments to come shortly,” justice Chandrachud told Sibal.

At this point, the AG also hinted at raising objections to the maintainability of the petitions seeking directions for timely appointments. “It’s easy for our learned friend to come and say why it’s not being done, but your lordships know better,” Venkataramani contended.

Responding, the bench said that the government must clearly outline the reasons for any delays, particularly in cases where the collegium’s recommendations have been reiterated.

The next hearing, scheduled for later this month, will be closely watched as the Supreme Court has revived its efforts to ensure that the appointments process reflects the constitutional mandate, free from unnecessary delays or executive interference.