Delhi: The Supreme Court said on Thursday its job is to enforce the law as it exists and it was "troubled" with the fact that many names recommended by the collegium for appointment as judges in the higher judiciary were kept pending by the Centre for long. The apex court said due to the prolonged process of appointment of judges and the delay in clearing the names, several potential judges are withdrawing their consent to be elevated to the bench, which has always been considered an "honour".
While hearing a matter about the protracted delay by the Centre in clearing the names recommended by the collegium, a bench headed by Justice S K Kaul said, before the last hearing, 19 names were sent back to the collegium by the government. "How will this ping-pong battle settle?" asked the bench, also comprising Justices A S Oka and Vikram Nath. "What troubled us was the fact that there were many names pending for months and years and some reiterated cases," it said, adding, "Our job as judges of the Supreme Court is to enforce the law as it exists today".
The apex court noted Attorney General R Venkataramani submitted a status report before it on December 7 where a reference has been made to the Memorandum of Procedure (MoP) for the appointment of high court judges. "Once the collegium in its wisdom or you may think lack of it has said that this is the basis on which it has worked the MoP.... there is no up and down which has to take place," Justice Kaul said.
The bench said once the MoP issue is over, the government should not have referred to the views of the two judges of a seven-judge bench in a subsequent judgement to justify the delay. "Observation of two judges, can that upset the process of the constitutional mandate of five-judges which lays down the procedure of the MoP as the final view which is taken by the collegium," the bench asked. It said the note placed before it has referred to the July 2017 judgement in which certain observations were stated to have been made by two judges, who were part of the seven-judge bench.
The bench said it has been submitted before it that this gave rise to a thought process in the government that this should be taken note of and there is a need to make improvements in the MoP. It said the MoP is final but it does not mean that if the government thinks improvements should be made in it, that cannot be looked into. "But till that happens, the MoP which is existing shall apply," it said. It said elevation to the bench has always been considered to be an honour.
"However, there has been reluctance on part of successful lawyers to accept the honour and what we have stated in the last order is out of the experience of not being able to persuade such eminent persons to join the bench," it observed. The bench said one of the factors is the long process of appointment and this has resulted, at times, in people withdrawing their consent to be elevated to the bench. It said the report placed before it also seeks to highlight the expected vacancies in the next six months.
"There is no hesitation in saying that the high courts must take effective steps to make recommendations in time....," it said. On the issue of names reiterated by the collegium being sent back by the government, the bench asked the Attorney General as to how under the scheme of law prevalent are reiterated names being sent back.
The bench noted the Attorney General has pointed out that in two earlier cases, in such a scenario, the collegium had decided to drop the recommendations. The top court observed it is not aware as to the special circumstances in which the names were dropped. It said another issue which has been highlighted before it is when the recommendations are made by the collegium, the seniority set out therein must be followed. The bench, which observed that the government should address this issue, said the Attorney General has assured he will have further consultations on these issues flagged by the court.
The top court, which posted the matter for resumed hearing on January 6, said it is necessary that all must follow the law which has been laid down.
"We have penned down a very moderate order...," it observed. At the outset, the bench observed that the National Judicial Appointments Commission (NJAC) Act passed by Parliament did not pass the muster of the constitutional mandate. "Till the law is prevalent, it must be followed," it observed.
While hearing the matter on November 28, Justice Kaul had observed it appeared the government was unhappy with the fact that the NJAC Act did not pass the muster, but that cannot be a reason to not comply with the law of the land.
The apex court had in its 2015 verdict struck down the NJAC Act and the Constitution (99th Amendment) Act, 2014 leading to the revival of the collegium system of existing judges appointing judges to constitutional courts. During the hearing on Thursday, the bench referred to the process of appointment of judges to higher judiciary, including the recommendation by the collegium, and said the government's view is also taken into account.
"There cannot be any undisclosed reasons in a system like this where we can say that after taking the government's view and the court clearance, it is blocked unless there is some facts which have come to light for which the government sends back the recommendations," it said.
The bench said once the name has been reiterated by the collegium after considering the government's view, there is "no other passage" which has been provided by the Constitution bench. "You have to appoint. This is the position. You are sending names twice over, thrice over," it added.
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