Judges’ transfers | Supreme Court on delay by Govt: Extreme concern, signals other factors

Attorney General R Venkataramani responded: “I also feel very strongly about it. I have taken note of this issue”.

The bench, also comprising Justice A S Oka, detailed the process to underline the due diligence that the collegium deployed and “there is no reason” for the government to sit on the recommendations.

“The Collegium discusses and seeks opinion of consultee judges and as also the Chief Justices from where the transfer is made and where to transfer is being made. Comments of the judges concerned are also obtained. At times, at request of judge concerned, alternative courts are also assigned for transfer…This process is completed before a recommendation is made for transfer of a judge to the government. Delay in the same not only affects the administration of justice but creates the impression… there are third party sources interfering on behalf of these judges with the government.”

Hearing a plea which sought contempt action against the government for the alleged delay on its part in the matter of appointment of judges, the court also said that when lawyers become judges, they train to do their job independent of political affiliation and just because they have their own thought process doesn’t mean they are aligned one way or the other. It, therefore, counselled the government “let’s not look to what the lawyer is doing” while deciding their eligibility to be made judges.

“There are people of different points of view. And a court must reflect different philosophies and points of view…We praise Krishna Iyer as one of the outstanding contributors to the bench. Look from where he came. I do believe that when you join as a judge, you lose many colours and you are here to do a job and train yourself to do a job independently… whatever may have been your political affiliations, what may have been your thought processes…It’s a spectrum of thought processes…And they having their own thought processes doesn’t mean that they are aligned one way or the other in the Bar. Bar is a different ball game, bench is a different ball game,”Justice Kaul said,

He added, “This is something which troubled me a little. Let’s not look to what the lawyer is doing. Integrity of course is the first qualification”.

The government meanwhile assured the court that “all efforts are being made to conform to timelines” set by the top court in the matter of clearing names recommended by its Collegium for judge’s appointment.

“The timeline should not be deviated from and all efforts are being made to conform to those timelines”, AG Venkataramani said adding that “some recent recommendations sent by the High Courts are being processed” and that “about 44 of those recommendations will be cleared probably by Saturday or this weekend.”

The AG said that he is “personally looking into not the names, but the process”.

The SC also sought to know the status of the recent recommendations by the Collegium to elevate five High Court judges to the top court and said delay in clearing the names creates a corresponding delay in recommending names for replacing them in the respective High Courts.

Pointing out that three of the five names recommended are High Court Chief Justices, Justice Kaul said: “The problem which is arising is if vacancies arise for HC CJ’s on the basis of SC elevation, we are not able to send those recommendations because it will not be appropriate to send recommendations for the successor to take over…”.

The AG said: “I have looked into two of them…I don’t think there should be a problem….Instead of looking at them piecemeal, I want to look at them in a total”.

On the government returning names reiterated by the SC Collegium, the bench said the Collegium will take a call on it. “Wait for some more time. It’s pending with the Collegium. The Collegium will have to deal with it”, the bench said as the question was brought up.

He said that the 22 names which have been returned fall into three categories. There are names send back the first time; names send back the second time; and names which the government feels “we may have mistakenly not cleared.”

The bench commented on reports about the SC Collegium rejecting many names recommended by the HC collegiums and said “it shows scrutiny” by the Collegium.

“…When the SC Collegium is dropping names, it may be on the basis of the consultee judge’s view, it may be on the basis of the record, it can be on the basis of the government’s view. Like you do various things, we also look into everything and then decide to take a call. When we decide to take a call, you still, after that, have a right. You have a right to return it. But the delay in return and not appointing reiterated names is a matter of concern”, said Justice Kaul.

Explaining the concern behind delay in clearing names, Justice Oka said: “What is happening is statement is published on the website that a particular name is cleared for appointment to HC. If it takes months thereafter, a person is professionally affected and that is a major problem. And therefore persons hesitate”.