New Delhi: The Supreme Court said on Friday it is a ”matter of concern” that the government is sending back the names reiterated by the Collegium for judgeship in constitutional courts despite there being nothing in the present scenario to prevent the appointment post reiteration.
A bench of Justices S K Kaul and A S Oka observed that nothing prevents the legislature from bringing in a better system for the appointment of judges to constitutional courts but till the time the law holds it must be implemented.
Advocate Prashant Bhushan, appearing for one of the petitioners, said even the names reiterated by the Collegium have been sent back by the government ”That is a matter of concern. We have already flagged it in the last order,” said the bench, which was hearing a matter related to the alleged delay by the Centre in clearing the names recommended by the Collegium for appointment as judges to the Supreme Court and high courts.
It said the government may have its own views when a recommendation is made but it can’t be kept on hold without sending back the comments on it. ”What is to be done is that comments can be sent to us. We will look into the comments, see whether we want to reiterate it or drop the name. If we reiterate the name, then there is, as per the present scenario, nothing which can prevent the appointment,” it said.
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The bench said every system has its positives and negatives and neither anyone is saying that there is a perfect system nor can there be a perfect system.
Justice Kaul observed the grave concern is, ”are we creating an environment where meritorious people have hesitancy in giving their consent (for judgeship). It is happening. I have seen it happening.” The bench said the delay in clearing the names deter people from giving consent.
When the bench asked Attorney General R Venkataramani about the five names recommended by the collegium last month for elevation as judges of the apex court, he requested the court to defer it, saying he is looking into the matter.
”This should not take time. They are already existing chief justices and senior judges,” Justice Kaul said.
The bench also observed, ”If you look at the statements made in the parliament and otherwise, the court itself at times has considered the view of the government and dropped names. That has also happened.” The top court said it is not that every name recommended by the high court’s Collegium goes through and this shows the scrutiny.
It said there are people with different points of view and a court must reflect different philosophy and course of views. ”I do believe when you join as a judge… you are here to do a job and trained yourself to do a job independently, dehors (other than, not including or outside the scope of) whatever may have been your political affiliations, what may have been the thought processes,” Justice Kaul said.
He said there is a spectrum of thought process in appointment of judges and if a person has his or her own thought process, it does not mean he or she is aligned one way or the other. ”Integrity of course is the first qualification,” the bench said.
Senior advocate Vikas Singh, who also appeared in the matter, raised the issue of seniority of a person whose name has been recommended.
”We have had examples where seniority has been disturbed. Now a negative impact of that is that the collegiums will be very hesitant in sending the second list…,” the bench said.
On the issue raised by Bhushan that names reiterated by the Collegium have been sent back, the bench said the government in the last lot had returned some names which were pending. The apex court said some of the names sent back by the government were reiterated by the Collegium and some are those which the Collegium did not clear but the government in its wisdom felt they ought to be considered.
The bench has posted the matter for further hearing on February 3.