New Delhi: The Narendra Modi government took between 7 and 12 months to process and forward 24 names for appointment as high court judges in four states to the Supreme Court, ThePrint has learnt.
And now, while the top court collegium — led by Chief Justice S.A. Bobde and comprising Justices N.V. Ramana and R.F. Nariman — cleared the names on 5 February, within 45 days of receiving them from the government, the law ministry is yet to notify the appointments, said sources privy to the development.
Decks were cleared for the appointment of 11 district judges for Allahabad HC, one for Chhattisgarh HC, eight for Calcutta HC and two for Karnataka HC, while a go-ahead was given for the appointment of a senior advocate for Karnataka and one more lawyer for Chhattisgarh HC. Twenty-three of these names were sent to the government between December 2019 and February 2020, while one was sent in May 2020.
According to sources, the Allahabad High Court had sent names of 10 service judges on 19 December 2019 and one on 12 February 2020, while the Chhattisgarh High Court had recommended a lawyer on 10 January 2020 and a district judge on 15 May 2020.
In the case of Calcutta HC, the government had received the recommendations to elevate eight judges from district courts on 22 January 2020 and, for Karnataka HC, it got the names of a lawyer and two service judges on 18 and 28 February 2020, respectively.
All these files were forwarded to the SC collegium by the central government on 11 December 2020 with inputs from the Intelligence Bureau on each candidate. The SC collegium then on 5 February cleared all the 24 names and sent the files to the government, but they’re awaiting the law ministry’s notification now.
ThePrint reached the justice secretary at the law ministry through email for comments but there was no response till the time of publishing this report.
The Centre and the Supreme Court have often engaged in a war of words over HC judge appointments with both blaming the other for the shortage of judges.
Some high courts, including Bombay and Allahabad, are working with over 40 per cent vacancies in judges’ posts, the latest law ministry data showed.
According to the existing memorandum of procedure, a HC collegium sends its recommendation regarding appointment of judges to the Centre as well as the SC collegium.
The SC collegium can clear the names only after it receives proposals from the government following the candidates’ background checks. The collegium then clears the names and the law ministry notifies the appointments.
Experts, however, said the delay to clear the 24 names was unnecessary.
Senior advocate Sanjay Hegde said unlike the rigorous background checks required for appointment of a lawyer as a HC judge, the elevation of a serving district judge is a routine affair that can be completed without consuming much time.
Also read: 120 judge proposals are stuck as SC collegium hasn’t met for over 2 months due to lockdown
6 judges approved for Allahabad HC have retired
In case of the Allahabad High Court, the delay caused by the law ministry has left a question mark over the appointment of six district judges as they have already retired.
Although the law does not prohibit a retired district judge from becoming a HC judge, legal experts told ThePrint the delay is bound to affect their service tenure if the government agrees to notify their names.
According to the Constitution, the service of a HC judge is up to 62 years, while the retirement age of a district judge is 60 years.
But the probability of their appointment is bleak, considering the SC collegium has in the past not approved elevation of district judges who were left with a year’s service as a HC judge.
On 1 August 2018, a collegium led by then CJI Dipak Misra was “not inclined to recommend” a judicial officer from Karnataka as a HC judge of the state because he was already 61 years old by then. Although he was suitable for the post, the collegium said his appointment would not serve the desired purpose as he would have a short tenure.
Similarly, sources said the present collegium had in August 2020 declined its approval to nine district judges.
Senior advocate Ajit Sinha said the judges were not at fault, and procedural difficulties and delays cannot be a reason to negate their right under the Constitution.
“The Constitution says a HC judge should be there for a period of 62 years. There is no restriction on their appointment and can legitimately stake their claim. The government might have reservations in appointing them due to their short tenure. But then it cannot punish the judges for no fault of theirs,” Sinha said.
On the top court adopting a different yardstick this time, Hegde said the collegium is an impermanent body as it is not written anywhere in the Constitution.
“The collegium responds to the situation as that team or composition sees it. Maybe, looking at the present circumstances where HCs are short-staffed, the collegium thought it appropriate to clear their names,” Hedge added.
Collegium to decide on 53 fresh proposals
The SC collegium, meanwhile, is yet to decide on 53 fresh proposals.
Files pertaining to elevation of 18 lawyers and four district judges to the Bombay High Court were sent to the government on 15 April 2020, while names of 31 lawyers from Allahabad High Court went on 24 May 2020.
These files were also sent to the apex court collegium by the government on 11 December 2020 after background checks. However, the collegium is yet to decide on these names.
According to the sources cited above, SC judges who have served in these two high courts have been asked to give their opinions on the proposed candidates for the collegium’s consideration.
Also read: Supreme Court collegium meets after 4 months, to fast-track appointment of high court judges