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Transfers of Judges | Supreme Court on Government Delay: Extreme Concern, Indicates Other Factors

Friday, the Supreme Court expressed “extreme concern” regarding ten recommendations for the transfer of High Court judges that are pending with the government, stating that “keeping it pending sends a very wrong signal that other factors are at play.”

Justice Kaul referred to the fact that two of the names were sent by the end of September 2022 and eight by the end of November as “a matter of grave concern.”

“It is of grave concern… In all honesty, the government’s role in this situation is quite limited. If we believe that certain individuals must be transferred in the administration of justice, the Collegium does so. Keeping it pending sends a very incorrect signal that other factors are coming into play, which is, in my opinion, unacceptable to the collegium.”

Attorney General R. Venkataramani replied, “I feel the same way. I’ve taken note of this matter.”

The bench, which also included Justice A.S. Oka, elaborated on the procedure to emphasise the collegium’s diligence, stating that “there is no reason” for the government to delay implementing the recommendations.

“The Collegium discusses and solicits the opinion of consultee judges as well as the Chief Justices from and to which the transfer is being made. In addition, comments from the relevant judges are obtained. Occasionally, upon the judge’s request, alternative courts are also assigned for transfer… Before a recommendation is made for the transfer of a judge to the government, this procedure is completed. Not only does the delay affect the administration of justice, but it also creates the impression that third parties are interfering with the government on behalf of these judges.

Hearing a petition seeking contempt action against the government for its alleged delay in appointing judges, the court stated that when lawyers become judges, they are trained to do their jobs independently of political affiliation, and that just because they have their own thought process does not mean they are politically aligned. It advised the government, “let’s not look at what the attorney is doing” when determining their eligibility to become judges.

“There are individuals with diverse points of view. And a court must reflect various philosophies and perspectives… We recognise Krishna Iyer as one of the outstanding bench contributors. Consider where he came from. I do believe that when you become a judge, you lose many of your colours and are here to do a job and train yourself to do a job on your own… Regardless of your political leanings or the nature of your thought processes… It is a spectrum of mental processes… And the fact that they have their own thought processes does not indicate that they are aligned in any way in the Bar. “Bench is a completely different ballgame than the bar,” Justice Kaul said,

He added, “This is something that slightly troubled me. Let us not observe what the attorney is doing. Integrity is the primary qualification, of course.”

In the meantime, the government reassured the court that “every effort is being made to adhere to the deadlines” established by the highest court in regard to vetting names recommended by its Collegium for judge’s appointment.

“The timeline should not be deviated from, and every effort is being made to adhere to it,” Attorney General Venkataramani said, adding that “recent recommendations sent by the High Courts are being processed” and that “approximately 44 of these recommendations will likely be cleared by this Saturday or the following weekend.”

The attorney general stated that he is “personally investigating not the names, but the process.”

The Supreme Court also inquired about the status of the recent recommendations by the Collegium to elevate five High Court judges to the highest court, stating that a delay in clearing the names creates a corresponding delay in recommending names for their replacements in the respective High Courts.

Noting that three of the five names recommended are High Court Chief Justices, Justice Kaul stated, “If vacancies arise for HC CJ’s as a result of SC elevation, we cannot send those recommendations because it would be inappropriate to send recommendations for the successor to take over…”

The AG stated, “I have investigated two of them…

I do not believe there will be a problem…

Instead of considering them individually, I want to consider them as a whole.

Regarding the government returning names reiterated by the Supreme Court Collegium, the bench stated that the Collegium would decide. “Wait a little longer. The matter is pending with the Collegium. As the question was raised, the bench stated, “The Collegium will have to deal with it.”

According to him, the 22 names returned fall into three categories. There are names returned the first time; names returned the second time, and names that the government believes “we may have erroneously not cleared.”

The bench commented on reports that the Supreme Court Collegium rejected a number of names proposed by the high court collegiums, stating that “it demonstrates scrutiny” by the Collegium.

“…When the Supreme Court Collegium is dropping names, it may do so on the basis of the consultee judge’s opinion, the record, or the government’s opinion. Like you, we investigate everything before deciding whether to make a call. After we decide to accept a call, you still have a right. You’re permitted to return it. However, according to Justice Kaul, the delay in return and failure to reappoint repeated names is cause for concern.

Justice Oka explained the cause of the delay in clearing names, stating, “A statement on the website indicates that a particular name has been cleared for appointment to the High Court. If it takes months, a person’s career is negatively affected, which is a major issue. Therefore, individuals are hesitant”.


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