Supreme Court pulls up Union Government for no response on collegium recommendations

A Division Bench directed the Attorney General to engage in a “fruitful discussion” with the Union Government over pending recommendations

On 7 November 2023, a Division Bench of Justices S.K. Kaul and Sudhanshu Dhulia pulled up the Union Government over 14 recommendations which had received no response and five recommendations that the collegium had reiterated for the second time. The Court was hearing a petition filed by the Advocates Association Bengaluru for expeditious appointments of judges recommended by the Collegium.

The Bench observed that the Union is selectively approving names suggested by the collegium even in matters pertaining to the transfer of judges from one court to another. They stated that the Union Government should not be concerned where a judge sits, especially after they are already appointed. The Bench warned that they want to avoid a situation where the Supreme Court or Collegium makes a call which will not be palatable.”

Advocate Prashant Bhushan: “Time has come to crack the whip”

Urging the Court to adopt a stricter approach, Bhushan argued that the Court had given the Union “more than a long rope.” He said, “The Government is getting the impression that it can get away with anything…because the Court is not cracking the whip.” Bhushan then requested the Supreme Court to summon the Law Minister for gross contempt. This would make the Union answerable for the delays.  he stated. He submitted that the Union is exercising a veto over names. 

Senior Advocate Arvind Datar contended that the delay in accepting recommendations has been a “chronic problem” for a long time. He argued that the problem has persisted under different governments as well. He persuaded the Bench to lay down the law under Article 141 which binds all Courts to the decisions of the Supreme Court. He suggested that the Court can set a timeline which will obviate instances of repeatedly approaching the Supreme Court.  

Justice Kaul: Delay in appointments discouraging for young lawyers  

Justice Kaul emphasised that the Union Government’s practice of selectively accepting recommendations has the potential to disrupt the internal seniority among judges. This, he stated, has caused senior Judges to “lose out”, prompting them to withdraw their name from consideration. He underscored that selective approval of names should not cause a situation where junior judges are appointed out of turn.

Justice Kaul expressed his concern that the prolonged process of awaiting approvals from the Union Government could demoralise young competent lawyers and dissuade them from considering judgeship. He revealed that he refrains from actively encouraging young lawyers to take up this path because he questions whether the effort and the waiting period are ultimately “worth his while.” Justice Kaul pointed out that the current process has made it challenging to identify and retain the best talent within the judiciary.

Reflecting on the historical perspective since 1950, Justice Kaul noted that there has always been an element of tussle in the appointment process between the executive and the judiciary. Recognising that a definitive solution to this tussle is elusive, Justice Kaul stated that there must be an “element of trust” between the two organs. 

The Bench directed Venkataramani to show substantial progress in the next hearing which is expected to take place on 20 November 2023.