SC slams Centre for holding up appointment of judges
12 August 2016
The Supreme Court today accused the government of "sitting on" the appointment of judges and said scathingly, "Don't force us to pass orders to remove this logjam."
A three-judge bench led by Chief Justice of India T S Thakur asked whether the Narendra Modi government is trying to bring the entire judicial institution to a "grinding halt" by sitting on recommendations of the collegium for appointment and transfer of judges to High Courts across the country.
The bench said that since February, 75 names had been recommended as high court judges but none had been cleared by the government.
"Why is there mistrust? Judges who have been transferred by the collegium have not been transferred (by the government). We don't want all this," the judges said.
Chief JusticeThakur made it clear to the Centre represented by Attorney-General Mukul Rohatgi that the apex court would be "forced" to judicially intervene and call for every file sent by the collegium to the government for its clearance.
Not satisfied with Rohtogi's repeated assurances to take it up at the "highest level", Thakur said "Don't force us to ask where the files are ... don't force us to judicially intervene ... don't try to bring this institution to a grinding halt ... that's not the right thing to do."
"We have a chart here detailing the list of Collegium recommendations for appointments and transfers. We can give it to you. There are 75 names of HC judges recommended by the Collegium. These include names for appointments and transfers of HC judges, including Chief Justices. There is nothing on them from your side so far," Chief Justice Thakur said.
The government may be working on the draft Memorandum of Procedure for appointment of judges, but that did not give them the excuse to freeze appointments in the meanwhile. "If you have a problem with a name suggested by us, send the file back to us. We will look into it... This is some kind of a logjam and this whole situation is getting very difficult," Chief Justice Thakur said.
The bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, pointed out to the government that "most HCs are working with only 40 per cent of their sanctioned strength and people are languishing in jails for 13 years for a hearing".
"Will you wait till they complete a life sentence?" Chief Justice Thakur asked the government.
The appointment and transfer of judges is decided by the collegium of the senior-most judges of the Supreme Court, including the chief justice. The names recommended by the collegium are forwarded to the government for approval and finally signed off by the President.
Justice Thakur told the government, "You can't leave a situation where courts are allowed to be shut down. Accessibility to courts can't be allowed to come to a grinding halt. Tell us where the files are. There has to be some accountability. If you have any problems with the names, send it back. Collegium can consider. You can't sit over files and not process the recommendations."
The judges commented that even transfers and appointments of chief justices of high courts had not been done.
"In February, a few judges were recommended for transfer. Still the names are not processed. It gives a wrong impression and we feel to think whether judicial work should be withdrawn from those judges under transfer," said the Chief Justice.
The searing comments reflect the deeper rift over whether the government should have a greater say in the appointment of judges.
The appointment of more than 400 judges in the Supreme Court and high courts across the country has been caught in the tussle between the judiciary and the government over the procedure.
Last year, the National Judicial Appointments Commission passed by parliament was struck down by the top court, which marked another notch in the long-running feud. The commission, which would include three judges and three government representatives, was meant to replace the system of judges appointing judges.
A panel of the senior-most Supreme Court judges last month rejected another move to give the government a greater say in appointments.
Union law minister Ravi Shankar Prasad recently informed Parliament that the draft MoP for judicial appointments has been reverted to the Collegium.
The collegium had raised several objections to the government's earlier drafts, especially clauses saying that the government has the prerogative to drop a judicial candidate's name for reasons of national security despite the Collegium's reiteration.