india

Updated: May 04, 2018 23:25 IST

Justice MB Lokur, one of the senior-most judges of the Supreme Court and a member of the collegium that nominates judges to the apex court, was part of a bench that criticised the government for sitting on recommendations from the collegium on judicial appointments – the first time a member of the collegium has spoken out over the stand-off between the collegium and the government on the appointment of judges.

Last week, the Centre cleared the appointment of Indu Malhotra as a judge of the Supreme Court and asked the collegium to reconsider the recommendation that Justice KM Joseph from the Uttarakhand high court be elevated to the top court. The collegium had made both recommendations together, in the first week of January.

On Friday, while hearing the plea of a petitioner from Manipur, the court witnessed exchanges between the bench and the government’s law officer attorney general KK Venugopal that highlighted various aspects of the stand-off. Venugopal complained that the Supreme Court collegium was recommending just a handful of names for the high courts working at 60% of their sanctioned strength (in terms of judges).

The bench, of Justices Lokur and Deepak Gupta told Venugopal that this did not give the government the liberty to sit over names sent long back. Not content with that, Justice Lokur then asked Venugopal to let the court know as to how many collegium proposals were pending with the government. When the AG replied he did not have the data, the bench shot back: “This is the problem with you (the government). When it comes to attacking (the) judiciary, you have the data. But when it comes to the government then you say you don’t have the figures.”

The government hasn’t decided on a three-month-old recommendation by the collegium on the appointment of chief justices of five high courts. The collegium, on April 19, sent another recommendation to the government on the appointment of high court judges and also the chief justice of Meghalaya and Manipur.

The exchange of words prompted the law officer you remark jocularly: “I think NJAC was a better option to have.” The court did not respond to that .

The law officer’s reference is to the National Judicial Appointments Commission that the National Democratic Alliance (NDA) government wanted to set up in an effort to streamline the appointment and transfer of judges. While a bill to this effect was passed and ratified, and also approved by the President, it was struck down by the Supreme Court in 2015. The court later admitted that it was open to making the collegium system more transparent and said the government and it would work on and decide a so-called memorandum of procedure (MOP) on this. There has been no progress on this.

The exchange of words between the bench and government’s top law officer came when the court took up a transfer petition filed by a resident of Manipur. The petitioner, who lost a case before a single-judge bench in Manipur approached the top court to allow him challenge the order before the Guwahati High Court. His plea is that he cannot file an appeal in the Manipur HC because there are only two judges there, one of whom had delivered the judgment against him. There is no full-time chief justice in Manipur too.

Venugopal appeared on Friday before the court pursuant to an order seeking his assistance. The AG informed the bench that the Supreme Court collegium had on April 19 sent a recommendation on the appointment of the chief justice of the Manipur high court. “I spoke with the government authorities and they have promised the appointment would be notified shortly,” Venugopal told the bench, which asked him whether the word “shortly” meant “three months”.

Venugopal replied the government was serious about the appointment and that the same would be done in 10 days.

At this, the court told Venugopal that there was a crisis in north-east. “In Meghalaya there is only one judge against four. Even Tripura has just two against four. The recommendation was also made for Meghalaya. What happened to that?” Justice Lokur asked.

“People of the North-east are suffering. What are they supposed to do?. Should they approach the Supreme Court to get their cases transferred to other high courts and spend money to hire lawyers there?” the bench asked.

At this point, Venugopal blamed the collegium for not making enough recommendations. “We may appoint one more judge in Meghalaya. But that does not resolve the problem. Collegium has to look at the future. Recommendations need to be made keeping in mind vacancies that will arise six months later,” he told the judges.

Venugopal cited figures to point out that high courts have 40% vacancies . (More) Recommendation is the only way to fill them up, he insisted, adding: “The collegium doesn’t send us the names and the government is told it is being tardy in processing.”

Justice Lokur told the law officer the court did not wish to go into the larger picture. “We cannot tell the collegium what to do. Also, here we are concerned only with North-east. You file an affidavit to tell us how much time will you take to make the appointments in the North East. File an affidavit in the next 10 days,” the bench told Venugopal.