Don't make us take a judicial decision: SC to Centre on judges' appointment

The Supreme Court on Monday expressed anguish over the delay by the Centre in clearing the names recommended by the collegium for appointment as judges in the higher judiciary, saying it “effectively frustrates” the method of appointment.

A Bench of Justices S K Kaul and A S Oka said the apex court had laid down the timelines within which the appointment process had to be completed. Those time-lines have to be adhered to. It said the collegium has recommended the names of chief justices for high courts and these recommendations are lying in abeyance.

Senior advocate Vikas Singh, who had assisted the apex court in the matter earlier, referred to media reports on a statement by Union Law Minister Kiren Rijiju on the issue of appointments. “How many statements we take note of,” the Bench asked.

During the hearing, when Singh again referred to media reports, Justice Kaul said, “I ignore all press reports.” “When somebody high enough says let them do it themselves, we will do it ourselves,” the Bench said. “It is crossing the rubicon by keeping the names pending like this,” the court observed. It said the collegium has recommended the names of chief justices for some high courts and these recommendations are lying in abeyance. “For the past two months, the whole thing has come to a standstill,” it said, adding, “Please resolve it.” “Don't make us take a decision on this in the judicial side,” the bench said.

Justice Kaul observed it appeared the government is unhappy with the fact that the National Judicial Appointments Commission (NJAC) Act did not pass the muster, but that cannot be a reason to not comply with the law of the land. “How does the system work?” the Bench asked, adding, “Our anguish we have already expressed.” “It appears to me, unhappiness of the Government of the fact that NJAC does not pass the muster,” Justice Kaul observed.

The apex court had in its 2015 verdict struck down the NJAC Act and the Constitution (99th Amendment) Act, 2014, leading to the revival of the collegium system of existing judges appointing judges to constitutional courts.

During the hearing on Monday, the apex court told Attorney General R Venkataramani that the names recommended, including those reiterated by the apex court collegium, are not being cleared by the government.

Sometimes laws pass the muster and sometimes they don’t. “That cannot be a reason not to comply with the law of the land,” he said. The top court was hearing a plea alleging “wilful disobedience” of the time frame laid down by the apex court in its April 20 order last year to facilitate timely appointment.

“Once the collegium reiterates a name, it is end of the chapter,”there cannot be a situation where recommendations are being made and the government keeps sitting on them as this frustrates the system.

It said some names are pending with the government for a year and half. “You are effectively frustrating the method of appointment,” the bench observed, adding some lawyers are withdrawing their consent given for elevation to the bench due to the delay in the appointment process.

It said the government sometimes picks just one name from among those recommended by the collegium and this “completely disturbs” the seniority.

Govt returns 20 files to SC collegium

The government has asked the Supreme Court collegium to reconsider 20 files related to the appointment of high court judges, including that of advocate Saurabh Kirpal who has candidly spoken about his gay status, sources said. The centre expressed “strong reservations” about the recommended names as it sent back the files to the collegium on November 25. Out of the 20 cases, 11 were fresh cases and nine were reiterations made by the top court collegium.