SC voices anguish over Centre's delay in clearing names sent by Collegium

New Delhi: The Supreme Court on Monday expressed anguish over the delay by the Centre in clearing the names recommended by the Collegium for appointment as judges in the higher judiciary, saying it "effectively frustrates" the method of appointment.

A bench of Justices S K Kaul and A S Oka said a three-judge bench of the apex court had laid down the timelines within which the appointment process had to be completed. Those timelines, it said, have to be adhered to.

Justice Kaul observed it appeared the government is unhappy with the fact that the National Judicial Appointments Commission (NJAC) Act did not pass the muster, but that cannot be a reason to not comply with the law of the land.

The apex court had in its 2015 verdict struck down the NJAC Act and the Constitution (99th Amendment) Act, 2014, leading to the revival of the Collegium system of existing judges appointing judges to constitutional courts.

During the hearing on Monday, the top court told Attorney General R Venkataramani the ground reality is that the names recommended, including those reiterated by the apex court Collegium, are not being cleared by the government.

"How does the system work?" the bench asked, adding: "Our anguish we have already expressed."

"It appears to me, I would say, unhappiness of the Government of the fact that NJAC does not pass the muster," Justice Kaul observed.

Justice Kaul said sometimes laws pass the muster and sometimes they don't.

"That cannot be a reason not to comply with the law of the land," he said.

The top court was hearing a plea alleging "wilful disobedience" of the time frame laid down by the apex court in its April 20 order last year to facilitate timely appointment.

The bench referred to the process undertaken for appointing judges in the apex court and the high courts.

"Once the Collegium reiterates a name, it is end of the chapter," it said, adding, there cannot be a situation where recommendations are being made and the government keeps sitting on them as this frustrates the system.

It said some names are pending with the government for a year and a half.

"You are effectively frustrating the method of appointment," the bench observed, adding some lawyers are withdrawing their consent given for elevation to the bench due to the delay in the appointment process.

It said the government sometimes picks just one name from among those recommended by the Collegium and this "completely disturbs" the seniority.

The apex court said the Collegium recommends the names keeping also in mind the aspect of seniority.

The Attorney General said after the apex court passed an order in the matter on November 11, he had some discussion with a secretary-level officer and that he will come back to the court.

Senior advocate Vikas Singh, who had assisted the apex court in the matter earlier, referred to media reports on a statement by Union Law minister Kiren Rijiju on the issue of appointments.

The Union Law minister had said: "Never say that the government is sitting on the files. Then don't send the files to the government. You appoint yourself, you run the show then".

The bench asked: "How many statements do we take note of?"

During the hearing, when Singh again referred to media reports, Justice Kaul said: "I ignore all press reports."

"When somebody high enough says let them do it themselves, we will do it ourselves... It came from somebody high enough. Should not have. All I can say is should not have happened."

"It is crossing the rubicon by keeping the names pending like this," the court observed.

The bench said both the Attorney General and Solicitor General Tushar Mehta are appearing in the matter.

"So the double barrel gun should work," the bench said in a lighter vein.

It said the Collegium has recommended the names of chief justices for some high courts and these recommendations are lying in abeyance.

"For the last two months, the whole thing has come to a standstill," it said, adding, "Please resolve it."

"Don't make us take a decision on this in the judicial side," the bench said.

The apex court, which posted the matter for hearing on December 8, said it expects both the Attorney General and Solicitor General to play a role to advise the government so that law of the land is followed.

"Till the law stands, it has to be followed," it said.

On November 11, the apex court had expressed displeasure over the delay by the Centre in clearing the names recommended for appointment as judges and said keeping them pending is "something not acceptable".

It had issued notice to the Secretary (Justice) of the Union Law Ministry and Additional Secretary (Administration and Appointment) seeking their response to the plea.