New Delhi, Nov 21 (The Street Press India) – On Monday, the Supreme Court criticized the government for ignoring the suggestions made by the collegium regarding the appointment and transfer of high court judges. The Court cautioned that persisting with this disregard might result in “unpleasant” consequences.
The apex court expressed regret that the Centre had delayed the transfer of six judges, including four from Gujarat High Court, as recommended by the collegium. The court emphasized that such actions are not favorable for the overall functioning of the judicial system.
The bench of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia questioned Attorney-General R. Venkataramani during a hearing, stating, “As per our information, you have issued transfer orders for five people, but not for 6 others — 4 of them are from Gujarat. This does not send a good signal. Don’t do selective transfers. It creates its own dynamics. Allahabad, Delhi, and 4 from Gujarat — 6 in total. What signal do you send when out of the transfers recommended, 4 judges from Gujarat are not transferred at all?”
Venkataramani requested a one-week adjournment to obtain instructions from the government, but the bench expressed dissatisfaction with the executive’s handling of the matter.
Justice Kaul remarked that the government’s hesitancy to transfer judges, despite the collegium’s recommendations, had resulted in a challenging and awkward situation.
Justice Kaul conveyed concern, stating, “What will happen at some stages is, we cannot let judges whom we do not want to work in a court to continue to work there. It will dilute the authority of the judges. This could mean something unpleasant. Please don’t let this happen,” addressing the country’s highest law officer.
In simpler terms, the court suggested that if the government persisted in delaying judge transfers, the collegium might need to withdraw judicial responsibilities from those judges whose transfers were being held back by the government.
The bench inquired, “Why will the candidates agree for their elevation, if the seniority is disturbed?”
Senior advocate Dushyant Dave, representing one of the petitioners, highlighted to the court the recent case of Gauhati High Court deferring the swearing-in of Kaushik Goswami as a judge. This decision was based on the fact that the other candidate recommended by the collegium on October 17, N. Unni Krishnan Nair, was not cleared by the Centre, despite both names being submitted in the same file.
After the high court delayed the swearing-in, the Centre quickly reversed its position and approved the appointment of Nair.
Justice Kaul concurred with Dave’s point and added, “Let me say they were advised to,” without providing further details.
The bench expressed approval, stating, “It’s good. We appreciate the stand taken by the collegium and the consequent action by the government.”
The bench officially noted in a written order its appreciation for Gauhati High Court’s decision to defer the swearing-in of judges, aiming to safeguard seniority from the government’s “pick and choose” policy.
During the previous hearing on November 7, the Supreme Court had conveyed to the Centre that the government’s “pick and choose” approach in approving judges’ appointments must cease, emphasizing that it was causing significant anomalies and impacting the seniority of judges.
Justice Kaul conveyed during the November 7 hearing, “This selective business… this pick-and-choose method must stop. This is not an off-hand remark, but something I have discussed with my colleagues in the collegium. I flag this issue because people lose out on their seniority….”
The bench was addressing individual applications filed by the Bengaluru Advocates Association, Supreme Court Bar Association, and the NGO Common Cause. These applications challenged the Centre’s obstruction of the collegium’s recommendations, despite repeated reiterations.
According to the memorandum of procedure governing the appointment process, once the collegium reaffirms a name, the Centre is required to approve it. Despite the clarity in the procedure, the Centre has remained steadfast, provoking the displeasure of the court.