Cleared by SC Collegium, kept pending by Govt: A few prominent cases of delayed appointment of judges

In one case, advocate C Emalias, who was recommended for the Madras HC, had his name dropped as the delay in appointment saw him cross the age of 55.

The Supreme Court issued notice Friday and sought a response from the Ministry of Law and Justice over delays in appointing judges. (File)

By: Explained Desk

4 min readNew DelhiNov 14, 2022 06:35 PM IST First published on: Nov 14, 2022 at 06:35 PM IST

The Supreme Court last week sought a response from the government on the issue of appointment of judges, underlining that the government is bound to accept the Collegium’s reiteration of its decision. A Bench comprising Justices Sanjay Kishan Kaul and Abhay Oka said that keeping names recommended by the Collegium on hold is a device to compel persons to withdraw their names.

Here are a few instances in the past where the government has dragged its feet on the recommendations of the Collegium.

Saurabh Kirpal

It has been over five years since Delhi High Court Senior Advocate Saurabh Kirpal was first considered for appointment as HC judge, and over a year since he was recommended by the SC collegium. If appointed, Kirpal could be India’s first openly gay judge, but the government is yet to make the appointment.

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Kirpal was first recommended for elevation in 2017 by the Delhi High Court Collegium, which was led by Acting Chief Justice Gita Mittal at the time. In 2018, the SC Collegium decided to take his case up for consideration “after some time” — and then deferred its decision on Kirpal’s recommendation on three other occasions: in January 2019, April 2019, and August 2020.

The SC Collegium finally recommended Kirpal to be the judge of the Delhi High Court in November 2021. Earlier on March 19 last year, in what was seen as an endorsement of Kirpal, he was unanimously designated Senior Advocate by all 31 judges of the Delhi High Court.

Aditya Sondhi

The SC collegium first recommended Karnataka HC Senior Advocate Aditya Sondhi for appointment as judge of that HC on February 4, 2021. Sondhi, a graduate of the National Law School of India University, served as Additional Advocate General under the previous Congress government.

When the government did not appoint Sondhi, the Collegium reiterated its decision on 1 September 2021. While the government did not return Sondhi’s file to the Collegium, it did not appoint him either. In February this year, Sondhi withdrew his consent for being considered for a judgeship.

C Emalias

The SC Collegium had recommended advocate Emalias for appointment as judge of the Madras HC on December 4, 2017. Justice Sanjay Kishan Kaul was then Chief Justice of the Madras HC. Since the government did not appoint Emalias, the SC Collegium reiterated its decision in August 2018. The government still did not comply with the reiteration. The name was later dropped because in the meantime, Emalias turned 55 and crossed the maximum desirable age for a recommendation.

John Satyan & Abdul Hameed

On February 16 this year, the Collegium headed by then Chief Justice of India N V Ramana recommended Nidumolu Mala, Sunder Mohan, Kabali Kumaresh Babu, S Sounthar, Abdul Ghani Abdul Hameed, and R John Sathyan for appointment as High Court judges.

These names had been sent by the Madras High Court Collegium to the apex court Collegium in 2021. While four judges were appointed, the recommendations of Hameed and Sathyan are still pending. The government has not returned the file to the Collegium nor made the appointment.

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Sakya Sen

Calcutta High Court advocate Sakya Sen, son of former HC judge Shyamal Sen, was first recommended by the High Court Collegium in December 2017. However, the SC Collegium in August 2018 sent the name back to the High Court for reconsideration.

In July 2019, the SC Collegium recommended Sen after the Calcutta HC Collegium sent his name again. Sen is yet to be appointed.

Nagendra Naik

Senior Advocate Naik, who belongs to Bhatkal in Karnataka, was counsel for CBI under the Congress-led UPA government. The SC Collegium first recommended him on October 3, 2019 along with eight other advocates. The government appointed all of them except Naik.

The Collegium then reiterated its recommendation on March 2, and then again on September 1. But the government is yet to appoint Naik.