Centre appoints judges after strong reproach from SC on the delay

The government finally cleared the Collegium’s December 13, 2022, recommendation to appoint five new judges to the Supreme Court. However, its approval came after the apex court toughened its stand on the delay in implementation of the collegium's recommendation for elevation and transfer of HC judges.

The collegium had on December 13 recommended elevation of Justice Pankaj Mithal (Chief Justice of Rajasthan HC), Justice Sanjay Karol (CJ of Patna HC), Justice PV Sanjay Kumar (CJ Manipur HC), Justice Ahsanuddin Amanullah (judge in Patna HC) and Justice Manoj Misra ( judge of Allahabad HC) to the apex court. All of them have been appointed and now the working strength of the Supreme Court will rise to 32.

Their appointments come amidst strong observations by a Supreme Court bench questioning the delay on part of the government in appointing and transferring judges based on the recommendations of the SC Collegium. The Supreme Court had observed that the Centre's indecision was troubling and forewarned that it would be compelled to take a “difficult” and “unpalatable” decision.

“It is troubling us. This is very serious, more serious than anything else. We will have to make a difficult decision. Do not make us take a hard stand," the bench of Justices Sanjay Kishan Kaul and Abhay S Oka told the AG R Venkataramani who sought 10 days.

During the last hearing on January 6, the Supreme Court had observed that the government had a limited role in the matter of transfer of judges and delay on its part in taking decisions was giving an impression of third party sources interfering on behalf of these judges with the government.

Stand-off between SC and Law Ministry

The issue of appointment of judges has become a point of friction between the Centre and judiciary, with the government using every forum to attack the collegium system of appointment of judges in higher judiciary and demanding a say in the process. The apex court, on the other hand, has been passing a slew of directions to prod the Centre to take time-bound decision on recommendations made by the collegium, and had for the first time set a time-frame.

Amid an ongoing standoff with the government over judicial appointments, On January 31, the Collegium had recommended elevation of Allahabad High Court Chief Justice Rajesh Bindal and Gujarat High Court Chief Justice Aravind Kumar as judges of the top court.

While recommending their names, the SC Collegium had said the names recommended by it on 13 December 2022 should have precedence over the two names recommended presently for appointment to the Supreme Court. “Therefore, the appointments of five judges recommended on 13 December 2022 should be notified separately and earlier in point of time before the two judges recommended by this resolution," the Supreme Court had told the Law Ministry.

With the government sitting over recommendations and implementing them selectively, the Supreme Court agreed to examine a contempt plea against the Centre for not adhering to its verdicts. The court has repeatedly told the Centre that it was bound by the collegium system of appointment, which is the law of the land. Faced with a deadline, the government had on January 6 assured the court that it would abide by the timeline.

The Union law minister Kiren Rijiju, in a letter to the Supreme Court, suggested the inclusion of a government representative in the “search-cum-evaluation committee” that will provide inputs on “suitable candidates” to the collegium.

“The Committees were to go through the material connected with evaluation the suitability of the prospective candidates and would be only a facilitator, as the decision to recommend will still be with the Collegia of the Supreme Court and High Courts,” it stated.

Contradicting responses from Law Ministry

Congress leader Mukul Wasnik had asked in Parliament whether the government had sought a search panel with its nominee to choose judges, and the response of the judiciary. Responding to Wasnik, the Justice Department underlined that the MoP (Memorandum of Procedure of appointment of judges) is “pending finalisation” in light of “various judicial pronouncements.”

In response to a question from JD(U) Rajya Sabha MP Ram Nath Thakur, Rijiju said the Centre had on January 6 suggested inclusion of a government nominee on a ‘Search-cum-Evaluation Committee’ which could assist the Supreme Court and High Court Collegiums in appointment of judges. However, in response to Thakur, the government stated that the MoP was finalised in 2017.

Responding to Thakur’s question, Rijiju said: “In pursuance of the above orders, the Government of India, after due diligence sent the MoP to Hon’ble Chief Justice of India on 22.3.2016, the response of the Supreme Court Collegium on the revised draft MoP was received on 25.05.2016 and 01.07.2016. The view of the Government in response to the views of the SCC was conveyed to the CJI on 03.08.2016. Subsequently, the then Chief Justice of India, vide letter dated 13.03.2017, sent the MoP.”

“Out of these seven vacancies, a proposal for the appointment of five judges in the Supreme Court is under consideration with the government. In the meantime, a proposal for remaining two vacancies was received on January 31 from the Supreme Court Collegium,” said the Law Minister.

The letter spoke about how best the appointment system can be “streamlined” and advised the CJI to constitute a search-cum-evaluation panel. According to news reports, the Supreme Court is yet to deliberate on the letter.

In 2015, when the constitutional amendment setting up the National Judicial Appointments Commission was struck down, the SC had observed that the MoP would be revised in view of “grievances” raised during the hearings. In 2017, then CJI JS Khehar had responded to the government’s suggestions on the MoP. With this, the MoP was considered “finalised” even in judicial pronouncements.

“In this behalf, a final view of the Judiciary was sent after discussion and there is no change in the aforesaid. The MoP has been circulated to the Chief Justices of High Courts,” a three-judge bench headed by then CJI SA Bobde had said in a judgment on April 20, 2021.