The Supreme Court Monday said the appointment of the chief justice of Manipur High Court has finally received the Centre’s attention and will be notified “shortly”, over three months after the apex court collegium had recommended Delhi High Court judge Siddharth Mridul for the post.
In a note submitted before a bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia, the Centre said the files regarding the transfer of 14 high court judges have been cleared and the remaining 12 are under process.
The apex court was hearing two pleas, including the one alleging delay by the Centre in clearing the names recommended by the collegium for appointment and transfer of judges.
The top court collegium headed by Chief Justice of India D Y Chandrachud had on July 5 recommended the appointment of Delhi High Court judge Justice Siddharth Mridul as the chief justice of the Manipur High Court, amid the ethnic turmoil in the border state. Appointment of chief justice to the high court of a sensitive state has finally received their attention and they are doing it now, the bench said.
Calling it a positive development, the bench said almost 70 names for appointment and transfers, which were pending with the Union Ministry of Law and Justice since November 2022 and not forwarded to the collegium, have suddenly landed before the top court collegium which will start processing them. The bench, which complimented the government for acting on the recommendations, observed it would not be correct to say that these are pending with the collegium as they have been received only in the last few days.
It said the collegium will now elicit the views of consultee judges on the recommendations made by high courts and processing will be done at the earliest. From tomorrow onwards, we will be starting processing the names because we can’t suddenly process 70 names on one fine day because the consultee judges’ view is taken We will try to finish it before the October vacation if we can deal with all of that, the bench said.
During Monday’s hearing, the apex court said the government did not have reservations over a large number of names recommended by the high court collegiums. It still took longer than anticipated before the ministry forwarded the names to the Supreme Court collegium, the bench said, and asked why does it require court’s intervention to get things moving. I am hoping and I will record that the Attorney General (AG) assures us that our intervention will not be required, Justice Kaul said, to which AG R Venkataramani said this was his endeavour.
The problem arises when the government has raised objections and the collegium overrules the objections. There the government has a right to examine it and say look, you may have cleared it but we still have some reservations to it. So they may send it back, the bench said. It, however, added where the names have been reiterated, then the appointments must take place.
After high court collegiums have made their recommendations for appointment of judges, the list is sent to the Union Law Ministry, which forwards it to the apex court. The top court then consults SC judges who have been elevated from the respective high courts about the names suggested by HC collegiums before sending its final recommendation to the law ministry. On the issue of transfer of 26 high court judges, the bench noted, it is stated that “the files in 14 cases have been cleared and notifications will be issued shortly. In respect to the remaining 12, it is stated to be under process” and added enough time has elapsed.
“As far as the appointment of a chief justice of a High Court which is pending for considerable time, that too for a sensitive state, it is submitted that the file has been cleared and notification will be issued shortly,” it said. “I am very clear. date, I want this to be done. I am being very, very polite, let me be polite,” Justice Kaul observed, adding he will take up this matter every 10 days for the next two months.
The bench said some names were recommended by the apex court collegium but neither appointments were made nor the names sent back to the collegium for reconsideration. There is another category where the apex court collegium has reiterated the names that were returned to it, the bench said. The names which have been recommended for the first time and not appointed, either the appointments should take place or if the government has something to say, they should be returned with whatever they have to say. It cannot be in limbo, it said.
Justice Kaul said he has felt we also sometimes make mistakes in transfers and recall those mistakes as nobody is infalliable. The court said if the government has flagged some names, it should not be too much of a pick and choose because people recommended for judgeship lose seniority.
It said, sometimes, the Intelligence Bureau reports also get delayed but there should not be so much delay. Justice Kaul said, personally, he was finding it a challenge to sometimes persuade individuals, who he thinks should make good judges, to come on the side of the bench and added it has become more herculean task than before.
One is reality and the other is a feeling that it takes too much time so why put the head on the rock, he said, referring to capable people being reluctant about joining the bench. The apex court told the top law officer the judgments dealing with appointments and the time required for making them should be followed without the court having to monitor the exercise.
The bench has posted the matter for October 20 to see further progress. During the hearing, an advocate representing one of the petitioners referred to the delay by the Centre in clearing the names. The lawyer said in cases where names have been reiterated by the collegium, they should be deemed to have been appointed.
The bench said they cannot be deemed to be appointed as judges to constitutional courts are appointed by the President. The appointment of judges through the collegium system has often become a major flashpoint between the Supreme Court and the Centre, with the mechanism drawing criticism from different quarters.
While hearing the matter on September 26, the apex court had voiced dismay over the “delay” in the appointment of judges and asked the AG to use his good offices to resolve the issue. “There were 80 recommendations pending until last week when 10 names were cleared. Now, the figure is 70, of which 26 recommendations are of transfer of judges, seven are reiterations, nine are pending without being returned to the collegium and one case is of appointment of the Chief Justice to a sensitive high court,” the bench had said.
The attorney general had sought a week’s time to come back with instructions on the pending recommendations for appointment to the high courts. The top court was hearing the petitions, including the one filed by the Advocates Association Bengaluru seeking contempt action against the Union Ministry of Law and Justice for allegedly not adhering to the timeline set by the court in a 2021 judgement.
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