Contempt call to SC against govt for stalling judges' appointment
The Advocates’ Association of Bangalore on Monday urged the Supreme Court to initiate contempt proceedings against the Centre for “wilful” defiance by refusing to clear 11 names for appointment as judges to various high courts in spite of the collegium iterating its recommendations.
The names include five shortlisted for Calcutta High Court. Among those recommended but not cleared for Calcutta High Court include senior advocate Amitesh Banerjee, son of former Supreme Court judge Justice U.C. Banerjee who headed the one-man commission that had ruled out a conspiracy behind the Godhra train fire that killed 59 kar sevaks, and advocate Sakya Sen, son of former Allahabad High Court chief justice Shyamal Sen.
In a writ petition filed through advocate Pai Amit, the association submitted that the wilful defiance of the collegium’s recommendations is in violation of the Supreme Court’s nine-judge bench ruling in 1993, iterated by another nine-judge bench in 1998 and restated by the Supreme Court on April 20 this year.
All these rulings had said that once the Supreme Court collegium iterates a name, the Centre has no option but to abide by it.
The association also expressed concern over the growing tendency of the Union government to segregate the names of candidates recommended by the collegium, instead of approving them in one instalment.
For instance, if six names are recommended for a particular high court by the Supreme Court collegium, the Union government since 2014 has been clearing only three or four names while withholding the remaining names indefinitely.
This affects the seniority of the person whose name is not cleared initially along with others by the Centre. A peculiar situation also arises as once a name is recommended, the “recommendee” usually desists from practising in any court. Any delay in clearing the name leaves the “recommendee” in a limbo.
Before 2014, the convention had been to clear all the names together. The association said it is “…deeply concerned with the extraordinary delays in the appointment of Judges to the Hon’ble High Court of Karnataka as well as the rest of the Hon’ble High Courts across the country, as well as the segregation of the names by the Alleged Contemnors/Respondents, which is detrimental to the cherished principle of the independence of the judiciary.
“It is submitted that by these inordinate delays in the appointment of Judges to the Hon’ble High Courts after the recommendation by the collegium headed by Hon’ble the Chief Justice of India even after reiteration are a direct contravention of earlier judgments,” the petition said.
The petitioner has made Barun Mitra, secretary, and Rajinder Kashyap, additional secretary, in the Union law and justice ministry “the alleged contemnors as respondents in the case”.
“It is submitted that it is a very dangerous precedent if the Executive confers upon itself the power to implement only those binding recommendations that are to its liking and chooses not to implement the others. It is submitted that the failure to implement the binding decision of the collegium headed by the Hon’ble Chief Justice of India, even upon reiteration, would amount to a wilful disobedience of the orders of the Hon’ble Supreme Court,” the petition said.
The association has cited the following cases of alleged defiance by the Union government:
- Calcutta High Court: 1. Jaytosh Majumdar (advocate), first recommended on 24.07.2019, reiterated on 01.09.2021; 2. Amitesh Banerjee (advocate), first recommended on 24.07.2019, reiterated on 01.09.2021; 3. Raja Basu Chowdhury (advocate), first recommended on 24.07.2019, reiterated on 01.09.2021; 4. Lapita Banerji (advocate), first recommended on 24.07.2019, reiterated on 01.09.2021.
- Jammu & Kashmir High Court: 5. Moksha Kazmi (Khajuria) (advocate), first recommended on 15.10.2019, reiterated on 01.09.2021; 6. Rahul Bharti (advocate), first recommended on 02.03.2021, reiterated on 01.09.2021.
- Karnataka High Court: 7. Nagendra Ramachandra Naik (advocate), first recommended on 03.10.2019, first reiteration on 02.03.2021, second reiteration on 01.09.2021; 8. Aditya Sondhi, first recommended on 04.02.2021, reiterated on 01.09.2021.
- Allahabad High Court: 9. Umesh Chandra Sharma (judicial officer), first recommended on 04.02.2021, reiterated on 24.08.2021; 10. Syed Waiz Mian (judicial officer), first recommended on 04.02.2021, reiterated on 24.08.2021.
- Calcutta High Court: 11. Sakya Sen (advocate), first recommended on 24.07.2019, reiterated on 08.10.2021.
The Supreme Court had earlier set the following timelines.
- The Intelligence Bureau (IB) should submit its report/inputs to the Centre within four to six weeks from the date of recommendation of the high court collegium.
- It will be desirable that the Centre forwards the file to the Supreme Court within eight to 12 weeks from the date of receipt of views from the state government and the report/input from the IB.
- It will be for the Centre to thereafter proceed to make the appointment immediately. If the government has any reservations, the names may be sent back to the Supreme Court collegium with the specific reasons for reservation recorded.
- If the Supreme Court collegium iterates the recommendation unanimously, it should be processed and the appointment made within three to four weeks.”
According to the petitioner, unreasonable delays are a direct assault on the independence of the judiciary.