Updated on Jan 12, 2023 05:04 AM IST
In a stern reminder, the Supreme Court collegium has written to the Union law ministry asserting that the central government is bound by a recommendation on judicial appointment if the decision has been reiterated by the judges’ selection body.
According to the people aware of the development, the top court collegium, comprising Chief Justice of India Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul and KM Joseph, sent a detailed note to the law ministry on Tuesday, elucidating the legal position and the judicial precedents on the issue of reiterated names.
The note was sent as the collegium reiterated — for the third time — its decision to appoint advocate Nagendra Ramachandra Naik as a judge of the Karnataka high court. Naik was first recommended by the Supreme Court collegium in October 2019. The collegium subsequently reiterated its decision on two occasions – March 2021 and September 2021.
The government, however, sent back Naik’s name yet again, flagging certain objections. This prompted the collegium to write an extensive response, reminding the ministry that judicial decisions and the memorandum of procedure (MoP) binds the government to notify the appointment of names once reiterated by the collegium.
People cited above said that the collegium’s note underlined that the government’s action “is in violation of the law laid down in the judgment by a nine-judge bench of the Supreme Court in the Second Judges case.” The 1993 verdict, the note added, makes it clear that if a recommendation is unanimously reiterated, with reasons, by the Supreme Court collegium, then as a healthy convention the appointment should be made “as the same is binding on the government”.
The note also borrowed from a latest judgment of the apex court, which laid down a timeline for the government to appoint judges following the collegium’s recommendations. The collegium cited the parts of the April 2021 judgment that obligated the government to revert to the collegium within 18 weeks if it has any reservation to a name proposed for judgeship.
“If the Supreme Court collegium, after consideration of the aforesaid inputs, still reiterates the recommendation(s) unanimously, such appointment should be processed and appointment should be made within 3 to 4 weeks,” the 2021 judgment by a three-judge bench had held.
On Tuesday, the collegium cited the 2021 judgment to stress that the government cannot return the recommendations for a review after the collegium has already reiterated the names after rejecting the objections.
Those in the know of the matter added that the detailed was prepared keeping in view the fact that there are 10 other recommendations, that had been reiterated by the collegium, were sent back by the government on November 28, last year. These names include three lawyers for elevation to the Calcutta high court, two for the Kerala high court and five candidates for the Allahabad high court. Brushing aside the objections raised by the government over their appointment as high court judges, the collegium had reiterated its recommendations over the last one-and-a-half years.
To be sure, the missive from the top court collegium has been shot to the government at a time when the judiciary and the executive seem to be in a continuing row over the judges’ selection mechanism.
The tussle, over the last few months, witnessed Vice President Jagdeep Dhankhar and Union law minister Kiren Rijiju criticising the collegium system of appointing judges, while the top court responded with reminders to the government that the collegium system is the law of the land that must be followed by the government “to a T”.
The issue of reiterated names was also highlighted by a Supreme Court by bench led by justice Kaul while hearing a contempt plea against the government over delays in making appointments of judges. During separate hearings over the past three months, the bench observed that it is “disturbing” and a “matter of concern” that the government is sending back the names reiterated by the collegium despite there being nothing in the present scenario to prevent the appointment post reiteration.
In 2014, the NDA government passed the National Judicial Appointment Commission (NJAC) Act, setting up an alternative system for appointment of judges to constitutional courts. But in 2015, the Supreme Court ruled that the law was unconstitutional as it sought to tinker with the independence of the judiciary.
The court’s pronouncement revived the collegium system – a method of judicial appointments evolved through three constitution bench judgments of the apex court between 1981 and 1998. Based on these judgments, a MoP was framed in 1999 to guide the judicial appointments under which 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. MoP, however, is silent on the time within which the appointments have to be notified by the government. This grey area was sought to be removed by the April 2021 judgment by prescribing a timeline for processing the names.
