CDJ Legal News

SC cautions Centre that selective appointments, transfers risk ‘embarrassing’ outcomes

05:25 PM, Monday,20 November 2023

‘What will happen at some stage is we cannot let judges whom we do not want to work in a court to continue to work in that court… Please do not let that happen,’ Justice Sanjay Kishan Kaul said

The Supreme Court on November 20 said the government’s tinkering with judicial seniority through “selective” appointments and transfers of High Court judges may trigger responses from the Collegiums, which may create “embarrassing” outcomes, including deferring the swearing-in of new judges or the withdrawing of judicial work.

“What will happen at some stage is we cannot let judges whom we do not want to work in a court to continue to work in that court… Please do not let that happen. It will dilute the authority of judges. It will embarrass these judges,” Justice Sanjay Kishan Kaul addressed Attorney General R. Venkataramani, appearing for the Centre.

The Bench, also comprising Justice Sudhanshu Dhulia, referred to a recent decision of the Gauhati High Court to defer the swearing-in of senior advocate Kaushik Goswami as a judge of the court. Mr. Goswami was recommended for judgeship along with advocate N. Unni Krishnan Nair by the Collegium in October. Mr. Nair’s name was placed before Mr. Goswami’s in the Collegium resolution. The government had, however, only cleared Mr. Goswami. The government appointed Mr. Nair as judge two days after the High Court deferred the swearing-in of Mr. Goswami.

“We appreciate the stand taken by the Collegium and the consequent action of the government,” Justice Kaul observed.

Senior advocate Dushyant Dave, for the petitioners, said it was time the apex court issued a mandamus to the government to clear all the pending names within the next 24 hours.

He said the Supreme Court had granted the Collegium the power of mandamus in the 1992 Second Judges Case verdict. Mr. Dave said even a time limit had been prescribed by the government to clear the pending names.

Justice Kaul said some of the candidates whose names had been kept pending by the government were senior to those being appointed as judges.

“If a candidate does not know what seniority he or she would have, it will be difficult to persuade other eligible and deserving candidates to join the Bench,” Justice Kaul pointed out.

The Supreme Court had earlier made it clear to the Centre to not selectively bypass people recommended by the Collegium for judicial appointment merely for their political connections or for defending a case against the government in court.

The Bench had in the previous hearing criticised the government for continuing with its policy of selective transfer of High Court judges despite repeated cautions from the apex court. The court warned that the government’s actions risked an “unpalatable” reaction from the Collegium.

“Once people are appointed as judges, where they perform their duties cannot be a matter of concern for the government… Whether a judge should work in ‘A’ court or ‘B’ court should be left to the judiciary. We are reaching that stage where tomorrow the Collegium will collectively advise not to assign judicial work to this judge… Do not make us take that step. It is not beyond our powers to do so. I am saying this with responsibility after discussion with the Collegium. It is not an off-hand remark from me,” Justice Kaul had warned the government.

The court had said the government’s pick-and-choose policy both in appointment and transfers of High Court judges was a matter of “great concern”.