regular-article-logo Thursday, 30 May 2024

Supreme Court raps government for sitting on judge transfers

Apex court chides the Centre for its unprecedented act of sending its own list of names for clearance by the collegium

R. Balaji New Delhi Published 07.01.23, 03:33 AM
Supreme Court of India

Supreme Court of India File Photo.

The Supreme Court on Friday rapped the Centre for sitting on the collegium’s recommendation to transfer 10 high court judges, saying such delays caused an “impression of third-party sources interfering on behalf of these judges with the government” to stall the transfers.

It also chided the Centre for its unprecedented act of sending its own list of names for clearance by the collegium, while accusing the government of violating laid-down procedure by returning names that the collegium had reiterated multiple times


Under a memorandum of procedure, the collegium alone can recommend the appointments and transfers of high court and Supreme Court judges, with the Centre allowed to seek reconsideration only once and bound to clear a name if reiterated by the collegium.

Friday’s development comes at a time Union law minister Kiren Rijiju has publicly accused the collegium of opacity and politics and sought a bigger say for the government in the appointments and transfer of judges, provoking sharp rejoinders from Chief Justice of India D.Y. Chandrachud.

The bench of Justice Sanjay Kishan Kaul and Justice A.S. Oka also questioned the Centre’s delay in appointing five recommended judges to the Supreme Court and 10 judges to Rajasthan High Court.

“The transfer of high court judges is done in the interest of the administration of justice. Exceptions apart, there is no reason for the government to delay at least on this issue,” the bench told attorney-general R. Venkataramani.

“The collegium consults and seeks the opinion of the judges who are to be transferred and also the chief justices of the high courts from where they are transferred and also the chief justices where they are to be transferred.... At times at the request of the judge concerned, an alternative high court is assigned. Only after this process is a recommendation sent to the government.”

It added: “You (the Centre) must understand that delay in clearing the transfers not only affects the administration of justice but also creates an impression of third-party sources interfering on behalf of these judges with the government.”

The implication was that some of the judges recommended for transfer might refrain from objecting too much before the collegium but secretly get others to intervene on their behalf with the government to stall the transfer.

The bench said two of the stalled transfer recommendations had been made in September 2022 and the other eight in November.

The bench was dealing with separate applications moved by the Bengaluru Advocates Association, the Supreme Court Bar Association and the NGO Common Cause challenging the Centre’s practice of sitting over the collegium’s recommendations and subsequent reiterations.

The bench noted that in recent times the Centre had sent back 22 names relating to the various high courts despite repeated reiterations by the collegium, and instead sent its own list of names for elevation to high courts.

“Mr Attorney, 22 names have been sent back by the central government. Out of these, some (had) been reiterated, some reiterated for the second time and some third reiterations have been sent back. Some names are which the collegium did not clear, but the government in its wisdom feels ought to be considered,” Justice Kaul, a member of the collegium, said.

“So, now the collegium will have to consider the views of the government whether those names, which the collegium did not clear earlier, are required to be cleared or not.”

Venkataramani informed the court that the government would by this weekend clear 44 of the 104 new judges recommended by the collegium for various high courts.

Justice Kaul said the Centre was sitting over files relating to the appointment of 10 judges to Rajasthan High Court, stressing that two of the recommendations had been sent in October 2021 and the remaining eight on November 25, 2022.

“l think that will be cleared without any further delay. Rajasthan will also be processed,” Venkataramani said.

Justice Kaul also asked about the fate of the five candidates recommended for elevation to the Supreme Court. Venkataramani sought a deferment of the hearing saying there were some differences of opinion on the names.

The bench said the Centre had also failed to clear the elevation of three judges as chief justices of high courts. Venkataramani promised to look into the matter.

The top court reaffirmed its earlier view that the government was free to bring in fresh legislation to replace the collegium system, but it would be subject to judicial scrutiny. And until then, the collegium’s recommendations were final and binding on the government.

In 2015, a constitution bench had struck down legislation that mandated a National Judicial Appointments Commission that gave the government a say in judges’ appointments and transfers.

The next hearing is on February 3.

At earlier hearings, the bench had expressed anguish at the statements made by Rijiju and Rajya Sabha Chairperson and Vice-President Jagdeep Dhankhar attacking the collegium system.

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