Monday, 4 July, 2022
HomeIndiaGovernanceIn a first, Modi govt changes collegium’s recommendation on HC judge’s appointment

In a first, Modi govt changes collegium’s recommendation on HC judge’s appointment

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The Supreme Court collegium had recommended Punjab & Haryana High Court judge Ramendra Jain be made permanent, but Modi govt only extended his term by six months.

New Delhi: For possibly the first time since the collegium system was introduced, the Centre has unilaterally amended the recommendation of the judicial appointments body to apply its own writ, considered a violation of settled law and procedure.

Last month, the Supreme Court collegium had recommended that Punjab and Haryana High Court additional judge Ramendra Jain be made a permanent judge, but the Centre has only given him a six-month extension.

Jain was appointed as additional judge on 20 April 2015 for a two-year term and given a year’s extension last year.

The latest decision may further open the Modi government to allegations of overreach in matters of judicial appointments.

According to settled law as well as the Memorandum of Procedure (MoP), the set of rules that guides appointments to the higher judiciary, judges of the Supreme Court and the high courts are appointed by the President on the recommendation of the Supreme Court collegium.

“This is unconstitutional and highly arbitrary since the government has, in this case, virtually assumed the role of the collegium,” said a former Chief Justice of India about the Justice Jain episode.

“How could the government issue such an order when the Supreme Court collegium said he should be made a permanent judge? I don’t think the collegium met again, before the appointment was notified by the President, to amend its recommendation,” he added. “This is a very worrying sign and the Chief Justice of India and senior Supreme Court judges who constitute the collegium should have taken strong exception to such a blatantly unconstitutional diversion by the government.”

A senior SC judge expressed surprise over the move, saying, “How can the government on its own decide such a matter? As per settled law, the recommendation of the Supreme Court collegium, if it has been reiterated, is binding on the government.”

“I don’t think there is any confusion that unless the Supreme Court collegium amends its recommendation, the Centre has no choice but to go by it. I hope the chief justice will do something to check this arbitrary action, possibly take it up on the judicial side suo motu,” the judge added.

A former secretary in the department of justice was also unequivocal. “I don’t understand how the collegium accepted this and allowed this to happen. This is patently unconstitutional,” the former secretary said.

“There must be some push-back from the Supreme Court because, in my view, this is just the beginning. The government is testing waters and unless the Supreme Court collegium puts its foot down, you can expect more of such things to happen,” the former bureaucrat added.

To emphasise the lack of precedent for the move, a former CJI recalled how, when a Constitution bench of the Supreme Court was hearing the National Judicial Appointments Commission (NJAC) case, the tenure of several additional judges was about to end. “The government requested the bench to pass some interim order so as to allow these judges to continue, and the bench did so. The government didn’t go and extend their tenure on its own – it required an order on the judicial side to do so,” he added, “What has happened now is very surprising and unconstitutional, in my view.”

What the case is about

On 26 March this year, the Supreme Court collegium recommended that Justice Jain be appointed as a permanent judge of the Punjab and Haryana High Court.

At the meeting where the decision was taken, the collegium said it was making the recommendation after “taking note of observations of the department of justice made in file relating to impending transfer of Mr Justice Ramendra Jain to Karnataka High Court”.

It asked the Centre to process the recommendation “expeditiously” in view of the fact that Justice Jain’s term was due to end on 19 April.

However, the Centre sat on the recommendation – something that is said to have become the norm of late, a fact noted with dismay by one of the most senior judges of the Supreme Court, Jasti Chelameswar, in his letter to Chief Justice of India Dipak Misra last month.

ThePrint had first reported Chelameswar’s letter on 28 March.

After waiting for the Centre to act, the Supreme Court collegium reiterated its recommendation on 17 April, two days before Justice Jain’s term was to end. It also told the Centre that the issue of his transfer had already been dealt with on 12 July 2017, recording “specific reasons for retaining him in the Punjab and Haryana High Court”.

The Centre, however, ignored the recommendation, and extended Justice Jain’s tenure by six months, barely hours before his term was to end. Owing to the last-minute decision, the Chief Justice of the Punjab and Haryana High Court called some judges to the court in the evening to swear in Justice Jain for the extended term.

‘Interference in the judiciary’

Since assuming office, the Modi government has been accused of several attempts to control judicial appointments and transfers: From getting Parliament to pass the NJAC Bill, which was later struck down by the SC, to sitting on Supreme Court collegium recommendations without any explanation, and stalling the transfer of several judges.

There have been several appeals, including by Supreme Court judges, to CJI Dipak Misra to take action in this regard, but he is yet to.

In this light, Chelameswar’s letter to the CJI and his brother judges was significant. In it, he had underlined that “for some time, our unhappy experience has been that the government’s accepting our recommendations is an exception and sitting on them is the norm”.

He had also observed that “inconvenient” but able judges or judges-to-be were “being bypassed through this route”, saying the issue was “now ripe for the consideration of the full court… if this institution really is to be any more relevant in the scheme of the Constitution”.

Days later, another member of the Supreme Court collegium, Justice Kurian Joseph, also wrote to the CJI, underlining that the “very life and existence” of the apex court was under threat.

By not implementing the collegium’s recommendations, Joseph wrote, the government is sending a “strong message” to “all judges down the line not to cause any displeasure to the executive lest they should suffer”. “Is this not a threat to the independence of the judiciary?” he added.

“… It is the first time in the history of this court where nothing is known as to what has happened to a recommendation after three months,” he said.

“The government owes a duty to take a call on the recommendation as soon as the same is sent by the collegium. Failure to discharge their duty by sitting over on the recommendations of the collegiums…, in administrative law, is abuse of power…” Justice Joseph wrote.

“The dignity, honour and respect of this institution is going down day by day since we are not able to take the recommendations for appointment to this court to their logical conclusion within the normally expected times,” he added.

Both judges were referring to, among other issues, the Modi government sitting on the Supreme Court collegium’s recommendation to elevate Uttarakhand High Court chief justice K.M. Joseph and senior lawyer Indu Malhotra to the apex court, and senior Karnataka judicial officer P. Krishna Bhat – whose name was cleared twice by the Supreme Court collegium – as a high court judge.

A bench headed by Joseph had set aside the imposition of President’s Rule in Uttarakhand by the Modi government.

However, so far, the CJI has not spoken on the issue.

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38 COMMENTS

  1. Was justice K M Joseph’s father was judge of supreme Court? Is this is his biggest qualification due to which he has been recommended by collegium superceding more than 40 senior judges and 12 chief justice of various high courts. If it is true Modi Govt is right as dynasty rule has to end in all institutions.

  2. Government should never be allowed to sit in judgement of any court higher or lower.otherwise, one day government will take over all the functions of pillars of democracy.Probably CJI is too occupied with his personal problems

  3. AS EXPECTED GOI is delaying judicial appointments and only extending the term at its whims and fancies. This is putting Judiciary at its worst freedom.

  4. Better appoint Rahul gandi, Kapil Cbl, AKAntony as members to safeguard independence of the judiciary. And invitees may be Lallu, Mamta, Mayavati and Chandra duos from South. Democracy n independence will be very safe in the hands of these patriots

  5. Whatever the defects or drawbacks in the conduct of the judiciary, this act of the Government is a blatant violation of the law. Dipak Misra is the Bhiveeshna of the Golden Lanka, called judiciary. He has been used by the politicians, because of his past dubious conduct as a lawyer to undermine the judicary and the democracy.

  6. So the judiciary has it. The latest happening of justice Jain’s extension instead of confirmation and not clearing the case of justice Joseph for appointment at Supreme court by the executive and keeping low profile by CJ on the issues is an indication of his being hand in gloves with the executive and the sell off has been returned as an undeclared bargain in the form of a great gift to CJ of out rightly turning down of impeachment motion against him.. Clearly the country’s judiciary is on sell out mode and the days ahead are very dim for citizens aspiring to avail justice when in difficulties. Where the country is going ,only god knows. We can pray for the democratic rights of citizens of country to be safeguarded.

  7. Chaiwala & Motu Shah want to control everything, they will destroy the country if not thrown out of power!

  8. Here become such an ibroligo as a conflicting situation leading to win the game that who is powerful. It is unprecedented fight between the judiciary and the executive.

  9. I think the executive’s inroads into the so called ‘independence ‘ is directly proportional to the loss of trust of the institution among the people . The days of justice Mahajan /Gajendra gadkar/Koka Subbarao are gone.

  10. Like other professions judges are also pron to corruption and laziness. They set on a simple cases for years without any accountability. As we know “late justice is like justice denied” for common people. Recommendations of collossium is send to president via home ministry to check the background of the concerned judges through the information collected by IB and other intelligence agencies. When there is any serious case against the judges then recommendation of the concerned judges is returned to Supreme court collossium with IB report for reconsideration. Same things is happened in some cases.

  11. Like other professionals judges are also pron to corruption and laziness. They set on a simple cases for several years without any accountability. As we know “late justice is like justice denied” for common people. Recommendations of collossium is send to president via home ministry to check the background of the concerned judges through the information collected by IB and other intelligence agencies. When there is any serious case against the judges then recommendation of the concerned judges is returned to Supreme court collossium with report for reconsideration. Same things is happened in some cases.

  12. Has any one ever tried to know how many names recommended by the collegium in the past are directly related to any sitting Judge or a retired Judge.

  13. What ever is posted is the general feeling of the masses-a kind of perceptions in the public at large.As we all know that no system can be ineffective in totality nor any system maybe flawless.Therefore possiblity of betterment is always there.Let us try to search for that without any prejudice.

  14. The very idea of formation of NJAC was discaded by the Apex Court in the pretext of indipendence of judiciary and Motesque s dooctrin of separation of power.Who so ever keeps a watch on recommendation of names made by the Colagium for the post of High Court Judges comes to a conclusion that the persons included in the list more often than not are blue bloods having ancestral or family Nexus with Uncle judges or brother judges. Even they are from specific social group of state particular.Some times Politicians in connivance with beurocrats also see
    the names of their favorites included in the list of probables.Push pull ,hook or crook every thing is tried.The judges who are promoted from HJS are product of a transparent process.The comment never precludes that the whole process of judges selection is faulty but it needs be more transparent and linked with internal check and balances.While looking for course correction sense of supremacy,omnipotence, utter honesty should not come to obstruct the passage for nuances.However, Constitutional limits along with need of the hour -transparent system for the appointment of Judges,is also to be given top priority.All wisdom available is to be harnessed and honed to find the much expected solution of the problem.Jai Hind,Jai Bhart,Long Live Democracy.

  15. Hello dear readers ,one line comment ,be it between govt of the day and the apex court ” jiski lathi uski bhais (might is right) tug of war amongst,elected v/s constitutional court of the land. May God save the nation.

  16. While reading the Article the conditions of initial appointments in government jobs began to come to mind. Appointment on probation initially for one year – if services found satisfactory by the employer or the appointing authority during this period it is extended for one more year. Now, if the Government has to decide if a High Court Judge is to be made permanent on the post then what remains to ensure justice! Does it not become a relationship between the Master & the Servant? Is a Judge then servant of the Government?

  17. The judiciary itself has been guilty of usurping powers and privileges not its own over the last few decades.

    But the real culprit in this matter, and in a lot of issues related to deficiencies in our country’s governance, is the flawed constitutional structure and arrangement which was, at its very outset, unsuited for a vast, sub-continent sized country. The situation has been made worse by the various progressively power-centralizing constitutional amendments over the decades.

    In a democracy, the judiciary has no business being allowed the authority to arbitrarily select, appoint and promote judges of the higher courts by itself!

    The judiciary must, as far as feasible, reflect the diversity and pluralism of the society in its composition, and must be institutionally accountable to the people, both directly and indirectly.

    Moreover, a country of the size of India has to have a decentralised judicial structure. The High Courts ought to be the final courts of jurisdiction and appeal in all matters except constitutional questions, and questions involving international and inter-state matters. A country with such a large proportion of poor and less educated has to have a maximum of a two-tier system of appeals to minimise the cost of justice.

    Our judiciary and judicial system fulfils neither needs.

  18. Ok this is the classic example of how an institution crumbles indirectly when a compromised chief justice is appointed its head.
    People saying that judges can not appoint themselves and above scrutiny take a different opinion for the chief justice abusing master of the roaster position.
    Sheer opportunistic approach of such kind of judges which are after retirement govt postings(Kerala governer) to not resist the govt misdeeds resulted in this dangerous situation.
    Unless collegium system becomes objective and transparent totally, this govt headed by criminals will corrode this institution resulting in a committed higher judiciary as is the case in Nepal today.

  19. Poor article.he did not mentioned name of judge who has questioned the decision. Only by saying that one chief justice said or one retired judge said, clearly shows that the writer has given his own thoughts in the name of other.

  20. Could someone please bring to light the countries in which the collegium system is operative. The British legal system is what is being followed in India. Could this someone also tell us if the system of appointments being followed currently in Britain is the same as in India.

  21. The crux of the impeachment motion against the CJI is that he is a silent spectator or to add is a partner to all government moves. May be he is the next NHRC chairman. The Modi government is directly making the SC it’s wing as it did in the case of EC. I was listening to the comments of BJP spokesperson soon after the impeachment motion is moved that the congressional trying to intimidate SC. The actions and inactions of the government does says who is intimidating. The CJI is slowly removing the word Honourable from their names.

  22. The ongoing tussle between the executives and the higher judiciary speaks volumes about the real inside story which is fast assuming some dangerous proportions. In fact, all this could be centred around “who’s the real boss?”

  23. There is a need to have a check and balance mechanism in any system. Otherwise, the system will soon go out of control. Both sides need to discuss and resolve this mechanism with the premise that judiciary’s independence will not be compromised. This kind of confrontation is certainly avoidable.

  24. Democracy should prevail in a free country.People must have a say in the functioning of the country.who else can represent the country except the elected representatives.It is always good to understand the truth and reason and arrive at conclusion.What is wrong of people are consulted.Justice should prevail.

  25. The Government should assert its supremacy in the matter of appointment, transfer of Judges to the higher Judiciary. In the present case only giving a six month extension to Justice Jain of Punjab and Haryana High Court and not making Justice Jain a Permanent Judge as recommended by the Collegium. This is a most welcome step of the Government. It is high time Courts and Justices are shown their limits . The common ordinary citizens of this Country have hugely suffered under this system of Judges appointing Judges – it is the prerogative of the people of this Country to choose a system which suits them best. There is hardly any transparency in the present system – hearing of cases are held up for years’ without any reason or on flimsy pretext and there is no accountability. Parliament is the supreme decision making body in a Democracy and the NJAC Act passed by the Parliament should govern the Appointment and tranfer of Judges to higher Judiciary. Independence of Judiciary does not mean that absolute powers are vested in the Judiciary – which is exactly the case now .. Judges should themselves not seen as above the law

  26. It is most unfortunate development blurring the difference between BJP and upa. will the Pm wake up to restore constitutional ethos?

  27. Modi’fied bjp is the most corrupt regime on earth & far worse than idi amin and the same fate awaits this criminal too.

  28. Since 2014 government intended to snatch appointment procedure and it is highly unlikely in interest of public at large. Judiciary independents is necessary looking to currant situation.

  29. Since 2014 government intended to snatch appointment procedere and it is highly unlikely in interest of public at large. Judiciary independents is necessary looking to currant situation.

  30. Latest news of extending tenure of Justice Rajendra Jain directly without the knowledge of CJI is violating the settled constitutional provision as the same comes under SCs power . This is the threat to the independence of judiciary & destroying the democratic value of the country .

  31. Chairman of RajyaSabha is a trustee of upper house of Parliament & impeachment motion rejection straight way by giving illogical reason of having no substance in the case medical college case.
    Ashok Goel
    Adv
    Pb & Hy High Court
    Chandigarh

  32. Clear breach of convention by Govt. At the same time, the collegium system is also suspect. Best to constitute a standing committee of the CJI and two senior SC Judges, the Attorney General. two retired CJIS who had held the position for the longest periods and two of the senior-most advocates of the SC. They make decide on appointments by minimum 75% concurrence

  33. Constitution is not amended to give rights to SC collegium to have absolute right in the appointment of judges. Constitution still says president will appoint judge in consultation with Chief justice of India. Government did amend the constitution to bring in a good system. NJAC amendment was a good move to bring transparency in the judicial system.
    Now government should go for confrontation and take supremacy given to the parliament by the constitution. People of the country know courts are not working and no one is getting justice (unless you are ready to give up an arm).

    I like the government pushing back judiciary which is already on thin ice. As an optimist I am looking for a good outcome in the future.

  34. BJP government is right. The collegium has been found to promote Bhai bhatiyaawaad in so many cases recommended by them. It even recommended a judge against whom enquiries for sexual assault of a woman judge was going on. Why had the collegium not yet finalized on the MOP for judges recommendation. No where your writer mentions that.

    • What is bhai bhatijavad? What people outside know about judges? Judges know better about their own colleagues and so their recommendations ought not to be questioned. Govt.’s way of appointments can be seen in appointments made thru Public Enterprises Selection Board, Banking board and various other boards where criteria of final appointments are total opaque and would not like to deliberate on public forum. Perhaps times are coming when same system is being thought of in judicial appointments. And, that day would be a Black day for Indian Democracy.

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