The battle for supremacy over the appointment of judges, between the Supreme Court and the Executive, now appears tilted in favour of the latter, although the Supreme Court’s Collegium may still have the final say on the matter as per the Memorandum of Procedure (MoP).
The latest indication about who has conceded ground in this battle can be gleaned from a courtroom exchange between Justice Sanjay Kishan Kaul, the senior-most puisne (who ranks below the Chief Justice) judge of the Supreme Court, and the well-known lawyer, Prashant Bhushan, over the non-listing of the case Advocates Association Bengaluru v. Barun Mitra & Another before him by the Supreme Court Registry on December 5, as directed by him.
This contempt matter concerns the Union Government’s delay in appointing judges recommended by the Supreme Court’s Collegium according to the MoP. Advocate Bhushan, representing one of the petitioners (Centre for Public Interest Litigation) in this case, drew the attention of the bench comprising Justice Kaul and Justice Sudhanshu Dhulia to the deletion of the case from the cause list for December 5 in Court No. 2, presided by Justice Kaul.
Justice Kaul, aware of the deletion, informed Bhushan that he was not responsible for it and expressed confidence that the Chief Justice of India, D.Y. Chandrachud, who is the Master of the Roster, was aware of it. When Bhushan remarked that it was “very unusual”, Justice Kaul responded, “somethings are best left unsaid sometimes”.
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Justice Kaul further clarified that he was not unwilling to hear the matter. In fact, during the previous hearing of the same case, Justice Kaul had censured the Union Government for delaying the notification of appointments and transfers recommended by the Collegium. He denounced the Centre’s “cherry-picking” approach, which results in swift clearance of certain recommendations while those deemed less favourable are left to languish indefinitely.
The MoP and the clear timelines established by the Supreme Court in a previous judgement, which all constitutional functionaries are bound to follow, leave no room for “pocket veto”, an extra-constitutional tactic employed by the Union Government to effectively kill a recommendation by simply delaying it indefinitely. If the Government has any concerns regarding a Collegium recommendation, it can return it for reconsideration. If the Collegium subsequently reiterates its recommendation, it becomes binding on the Government.
However, the Government’s use of “pocket vetoes” in numerous cases has repeatedly drawn Justice Kaul’s ire. At each hearing, Justice Kaul has admonished the Government, even as it made only minimal progress in clearing pending Collegium recommendations.
During the last hearing, Justice Kaul-led bench highlighted that four judges of the Gujarat High Court had not been transferred despite the Collegium’s recommendations. Notably, Justice Kaul had criticised the Centre’s practice of selectively notifying some Collegium recommendations while ignoring others it deemed objectionable. This approach, he argued, distorts the seniority of nominees in the all-India list of Judges, potentially affecting their prospects of elevation to the office of Chief Justice of a High Court or to the Supreme Court before their retirement.
The Supreme Court Collegium recommends nominees for appointment as Judges of the High Courts and the Supreme Court in a specific order. This order protects the seniority of nominees while considering their relative merit and judicial career. When the Union Government distorts this order, it leads to unintended consequences. Nominees recommended later by the Collegium can join the High Courts first due to the early notification by the Government, while those recommended earlier join later, or not at all, if the Government delays or ignores their recommendations.
Justice Kaul warned the Attorney General, R. Venkataramani, who represented the Centre in the case, that the Collegium has the power to advise against assigning judicial work to a particular bench if Judges whose transfers were recommended by the Collegium continue in their previous High Courts due to the Government’s failure to notify the recommendations. He also cautioned that these Judges would be embarrassed and their authority within their High Courts would be diluted.
Justice Kaul expressed further concern about eight recent recommendations by the Collegium that remained unfilled, even though some of these nominees were senior to others whose appointments were notified by the Government. He lamented that eligible and deserving nominees would hesitate to accept appointments if the Government deliberately delayed notifications. Indeed, a few nominees withdrew their consent to be appointed after the Union Government inordinately delayed notifying their appointments.
In this context, the deletion of the case from Justice Kaul’s hearing list on December 5, without his consent, raised concerns that the Government might have influenced the Supreme Court registry to avoid further criticism from him. Though deprecated by the Court, the practice of bench hunting has been resorted to by the Union Government in a few recent cases. As the Supreme Court is a polyphonic court with 34 Judges, its image is that it is capable of speaking in different voices. Therefore, the outcome of a case being heard by the Court may vary depending on which Judge or Judges heard it.
Senior advocate Dushyant Dave wrote to the Chief Justice of India, D.Y. Chandrachud, on December 6, expressing his anguish that many cases heard by certain benches were shifted out and listed before other benches, violating the Supreme Court Rules and the Handbook on Practice and Procedure of the Court.
Judicial primacy in peril
The turf war between the Government and the Judiciary over the appointment of Judges shows no signs of abating. The Government appears to have developed strategies to manipulate the system and claim primacy, ever since the Supreme Court struck down the National Judicial Appointments Commission as unconstitutional in 2015. The Court had directed the Government to replace the existing MoP with a new one after considering the Collegium’s proposals. However, the Government has consistently blamed the Collegium for the inordinate delay in revising the MoP, which has led to delays in notifying the Collegium’s recommendations.
Justice Kaul attempted to resolve the impasse through judicial means, rather than administratively through the office of the CJI. However, his efforts proved futile as the Centre sought more time in every hearing, hoping to avoid censure and contempt action by the Court for defying its earlier directions on adhering to the established timelines in the appointment process.
As a consequence, Justice Kaul’s successors, who will inherit this case after his retirement, may recognize the futility of finding a judicial solution. The Centre’s continued disregard for the Collegium’s primacy in the appointment process, despite clear verdicts from the Court favouring it, suggests that a resolution through the judicial system may not be possible.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.