Setting the stage for a standoff with the judiciary on appointment of judges, the government has returned 19 of the 21 pending recommendations by the Supreme Court Collegium for appointment of High Court judges, The Indian Express has learnt.
It is learnt that the recommendations were returned hours before the Supreme Court hearing on judicial appointments on November 28. These include 10 names that were pending after they were reiterated by the Collegium, and 9 names pending after the first recommendation.
Two recommendations, Union Law Minister Kiren Rijiju said in a tweet Tuesday, have been accepted.
These are for the appointment of advocates Santosh Govind Chapalgaonkar and Milind Manohar Sathaye as judges of the Bombay HC. The Collegium had recommended their names on September 12.
As per the provisions under the Constitution of India, the following Advocates are appointed as Additional Judges of Bombay High Court.
My best wishes to them. pic.twitter.com/swkr05Duod
— Kiren Rijiju (@KirenRijiju) November 29, 2022
Of the 10 names returned after the Collegium’s reiteration, five were for Allahabad HC; two for Calcutta HC; two for Kerala HC; and one for Karnataka HC.
The Collegium’s September 26 decision recommending Justice Dipankar Datta, Chief Justice of Bombay HC, as a judge of the Supreme Court is also pending with the government.
A 1993 ruling and an SC opinion in 1998 evolved the Collegium system for appointments and transfer in the higher judiciary. It is this Collegium system that is now being questioned by the Law Minister and being called “opaque” and “not accountable”.
The 10 recommendations returned after being reiterated by the Collegium for HCs are:
Allahabad High Court
Calcutta High Court
Karnataka High Court
Kerala High Court
The 9 names returned after being recommended for the first time as judges of the High Court are:
Earlier, on November 11, a two-judge bench of the Supreme Court, headed by Justice Sanjay Kishan Kaul, issued a “simple notice” to the Justice Secretary and the Additional Secretary (Administration and Appointment) in the Ministry of Law and Justice to respond before November 28 on why the government was dragging its feet on the Collegium recommendations.
As the second-most senior judge of the Supreme Court, Justice Kaul is also part of the Collegium headed by Chief Justice of India D Y Chandrachud.
Conventionally, the government is bound to accept the Collegium’s recommendation if the decision has been reiterated. While the Memorandum of Procedure (MoP) does not specifically talk about reiteration of the Collegium recommendations, it says “the Union Minister of Law, Justice and Company Affairs, would then put up as early as possible, preferably, within 3 weeks, the recommendation of the Chief Justice of India to the Prime Minister who will advise the President in the matter of appointment.”
The Collegium system evolved through interpretations of constitutional provisions by the Supreme Court in two rulings in 1993 and 1998 – the Second Judges Case (Supreme Court Advocates-on-Record Association Vs Union of India, 1993) and the Third Judges Case (a 1998 Presidential reference to the Supreme Court by President K R Narayanan over the meaning of the term “consultation” under Article 143 of the Constitution).
In the Second Judges Case, which devised the Collegium system for the appointment and transfer of judges in higher judiciary, it was held that the recommendation be made by the CJI in consultation with his two most senior colleagues, and that the recommendation should normally be given effect to by the executive. It held that although it was open to the executive to ask the Collegium to reconsider the matter if it had an objection to the name recommended, if, on reconsideration, the Collegium reiterated the recommendation, the executive was bound to make the appointment.
The Third Judges Case laid down that the recommendation should be made by the CJI and his four most senior colleagues, instead of two. It also held that Supreme Court judges, who hailed from the High Court for which the proposed name came, should be consulted.