SC raps Modi govt for delaying judges’ transfers, tells it consequences ‘may not be palatable’

SC raps Modi govt for delaying judges’ transfers, tells it consequences ‘may not be palatable’

Bench expressed concern over govt's purported reluctance to finalise transfer cases & reminded it that unlike in fresh appointments, govt had no role to play in transfers.

File photo of Supreme Court | Manisha Mondal | ThePrint

File photo of Supreme Court | Manisha Mondal | ThePrint

New Delhi: The Supreme Court Friday once again admonished the central government for not processing the top court collegium’s recommendation to transfer some judges, saying the delay in notifying the appointment body’s resolution may result in “both administrative and judicial action, which may not be palatable”.

A bench of justices Sanjay Kishan Kaul and A.S. Oka reiterated its concern over the government’s purported reluctance to finalise transfer cases and said the issue was “grave” and that it was “troubling” them. The court reminded the government that the latter had no role to play in transfer of judges, unlike in the case of fresh appointments.

The bench, which was hearing a batch of petitions against the government on delay in appointments to HCs, was talking about the Supreme Court collegium’s 24 November, 2022, resolution that had cleared transfer of seven judges. The government has, so far, not notified these transfers.

Further, it emphasised that it would not let any third party “play” with the collegium’s decision on transfers. This statement was a reference to the opposition raised by some state high court bar associations against the decision to transfer some HC judges.

“There should be no question of transfer of judges from one court to another pending before the government for such a long period of time,” the judges told Attorney General (AG) R. Venkataramani, even as the top law officer requested the court to defer its discussion on transfers.

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‘Pending transfers a very serious issue’

The proceedings Friday began on a positive note when Venkataramani informed the court that the government would soon clear appointments for the Supreme Court, possibly in five days. At present seven recommendations to the Supreme Court are pending with the government. While five were made in December, two were done earlier this week.

Later, when the bench sought to know the status of the transfer cases, the AG asked the court to postpone the hearing on this point. But the court was not in the mood to relent and took a dim view on the delay in processing the transfers.

“If transfer orders issued are not implemented, what do you want us to do? Should we withdraw judicial work from them (judges transferred). If in our wisdom we think it is appropriate that somebody should be working in court B or C, but you keep it pending, isn’t it a very serious issue? It is more serious than anything else. You will make us take some very difficult decisions,” Justice Kaul told the AG.

The judges urged the law officer not to force the court to take a stand “that will be very uncomfortable.”

They went on to highlight the manner in which the government uses its discretionary power to finalise appointments, saying it did not follow a uniform pattern. “You (government) say you need time, but sometimes you do it (clear names) overnight, while sometimes you take days. There should be a uniform pattern,” the judges opined.

It then spoke of the “problems” that arise when the government does not notify collegium resolutions on time. Citing an instance, the bench told the law officer that the government has not acted on a collegium proposal to elevate a sitting judge of a high court as its Chief Justice. This appointment would have taken place only after the transfer of the current Chief Justice of that HC, which the government is yet to clear.

Given that the judge concerned has only 19 days left for his retirement, the collegium recalled its earlier proposal and re-proposed to appoint the same judge as a Chief Justice of another HC in the Northeast. However, the government has still not responded to this recommendation as well.

“So, you want him (judge) to retire without being appointed as a Chief Justice,” Justice Kaul remarked.

The court also sought a clarification from the government on what it meant by saying that it was processing recommendations that were not approved by the collegium. “If the collegium has not given any approval, then where is the question of processing the name?” the bench asked.

It also noted in its order that pendency of appointment proposals with the government did not preclude the high courts from forwarding a list of candidates for current as well as a prospective vacancy arising in the next six months to the Supreme Court collegium and central government.

“We are not saying anything more,” the court said, before giving a week-long adjournment in the case.

(Edited by Zinnia Ray Chaudhuri)

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