"Action Might Not Be Palatable": Supreme Court Warns Centre Amid Tussle

Facing some tough questions from the Supreme Court, the Centre on Friday gave an assurance that the Collegium's pending recommendations for the elevation of five high court judges to the top court will be cleared soon and the warrant of their appointments may be issued by Sunday.

A bench of Justices SK Kaul and AS Oka also expressed displeasure over the delay in clearing recommendations for transfer of high court judges, calling it a “very serious issue”, and warned that any delay in this matter may result in both administrative and judicial actions which might not be palatable.

Queried about the status of the Supreme Court collegium's recommendations for the top court during a hearing on two petitions, Attorney General R Venkataramani said the warrant of appointments of five judges is expected to be issued shortly.

“When, is the next question? We are not saying about date. Two days, three days or four days, when will the warrants be issued?,” the bench asked.

“I was given to understand that by Sunday, it may be issued,” Mr Venkataramani said.

The top court while referring to the issue of delay in clearing recommendations for transfer of high court judges also observed, “Don't make us take a stand which will be very uncomfortable." "You will make us take some very very difficult decisions." The Collegium system has become a major flashpoint between the Supreme Court and the Centre with the mechanism of judges appointing judges drawing criticism from different quarters.

The Collegium headed by Chief Justice DY Chandrachud on December 13 last year recommended five judges for elevation to the Supreme Court -- Rajasthan High Court Chief Justice Pankaj Mithal, Patna High Court Chief Justice Sanjay Karol, Manipur High Court Chief Justice P V Sanjay Kumar, Patna High Court judge Ahsanuddin Amanullah and Allahabad High Court judge Manoj Misra.

Later. on January 31, the Collegium recommended to the Centre the names of Allahabad High Court Chief Justice Rajesh Bindal and Gujarat High Court Chief Justice Aravind Kumar for elevation as Supreme Court judges.

While recommending the two names earlier this week, the Collegium had said, “The names recommended earlier by the Collegium by its resolution dated December 13, 2022 shall have precedence over the two names recommended presently for appointment to the Supreme Court.” The top court, which has a sanctioned strength of 34 judges including the CJI, is functioning with 27 judges presently.

The court, which was hearing two petitions including one related to the Centre's alleged delay in clearing names recommended by the Collegium for appointment as judges to the Supreme Court and high courts, observed that five names for elevation to the Supreme Court were recommended in December last year and now it is February.

When Venkataramani said that warrants of appointment of these five names is expected to be issued soon, the bench said, “Should we record that for those five, warrants are being issued?" The bench noted that the attorney general has submitted that so far five recommendations made by the Collegium for appointment to the court is concerned, the warrants will be issued within five days.

The attorney general requested that the number of days may not be recorded.

“You are saying it is happening. When I ask, you say Sunday. That is why I gave longer period of time,” Justice Kaul observed.

“When you are saying it is happening, I gave the longer leeway when I said five days... We gave longer leeway because sometimes, there are unexpected delays,” he said.

When Venkataramani said the issue concerning appointment of high court judges be deferred for some time, the bench referred to the aspect of delay in clearing the recommendations for transfer and said it is "greatly troubling us".

"If transfer orders are not implemented, what do you want us to do," the bench said, adding that "we withdraw judicial work from them, is that what you want?" It said when the Collegium thinks somebody is appropriate for working in a high court and the government keeps the issue of transfer pending, it is "very serious".

"We will not permit any third party to play a game with this." The bench said there is no question of delay in transfer of judges from one high court to the another when the government has little role in this.

It further said one name was recommended by the Collegium for appointment as chief justice of a high court but the judge concerned is going to demit office in 19 days. "You want him to retire without being appointed as the chief justice?" Venkataramani said he is aware of it and necessary action is being taken.

The bench observed that sometimes names are cleared overnight, sometimes it takes time and there is no uniformity in this.

Advocate Prashant Bhushan, appearing for one of the petitioners, flagged the issue of names reiterated by the Collegium not being cleared by the government.

He said in some cases, despite second reiteration, the appointment has not been made yet.

According to the law, the government has no option but to appoint those whose names have been reiterated, Bhushan said. "It can't go on like this." An advocate, appearing for another petitioner, said the court is being "attacked outside the court".

"We are used to it ...We are used to handling this and be rest assured, it does not, beyond a stage, bother us. It is for different authorities to see what is appropriate and what is not appropriate," Justice Kaul said.

The bench, which posted the matter for further hearing on February 13, said it is trying to resolve all the issues.

“Mr Attorney, at least, I am taking your words for the five appointments and number two, the transfers and chief justices' appointment... These must come. It is on that understanding I am putting this after 10 days,” Justice Kaul said.

During the earlier hearing in the matter on January 6, the attorney general had told the court that all efforts were being made to "conform" to the time-lines laid down by it for processing the names recommended by the Collegium for appointment as judges to constitutional courts.

The bench had then observed that delay in dealing with the recommendations sent by the Collegium for transfer of high court judges not only affects the administration of justice but also creates an impression as if third party sources are "interfering".

One of the pleas in the Supreme Court has alleged "wilful disobedience" of the time frame laid down in its April 20, 2021 to facilitate timely appointment of judges.

In the order, the court had said the Centre should appoint judges within three-four weeks if the Collegium reiterates its recommendations unanimously.

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