The government has asked the Supreme Court Collegium to reconsider 20 files related to the appointment of high court judges, including that of advocate Saurabh Kirpal who has candidly spoken about his gay status, according to media reports.
This comes amid the ongoing cold war between the judiciary and the executive that took a new turn as the bench of justices Sanjay Kishan Kaul and AS Oka without naming the union law minister Kiren Rijiju expressed reservation over his comments that unless the collegium system is replaced, the government will show due diligence in clearing the recommendations. The bench also cautioned the Attorney General that if the names are not cleared soon, it will be forced to pass judicial order, reports Bar & Bench.
At the Times Now Summit on Friday (November 25), Law Minister Rijiju was responding to a question on the collegium system and delays in judicial appointments when he said, “Don't say the government is sitting on Collegium files; but if you want to say so, then appoint judges yourselves don’t send files to us you run the show.”
Responding to Law Minister Kiren Rijiju’s statement at the Times Summit, the Supreme Court on Tuesday said, “This has come from somebody high enough. This should not have happened.”
What did Rijiju say?
At the recent media summit, the top leader said, “There are loopholes in the Collegium and people are now raising voices that the Collegium system is not transparent, there is a bit of opacity, there is no accountability. The government is doing certain things the government is expected to do. Thus, don't say we (government) are sitting on the files, then appoint judges yourselves then you run the show then.”
He further said that the mechanism to appoint Supreme Court and high court judges, through the collegium system is "alien" to the Constitution.
"Anything which is alien to the Constitution merely because of the decision taken by the courts or some judges, how do you expect that the decision will be backed by the country," he asked questioning the Constitutional value of the collegium system.
On being asked that why the government is sitting on the recommendation of the collegium, he said that the government will show due diligence. He also said that the judiciary cannot simply expect that the government will sign off whatever is sent.
Supreme Court’s response
Responding to Rijiju’s attack on the legal system, the Supreme Court said that the Centre cannot hold names back without mentioning its reservations.
"Once the Collegium reiterates a name, it is end of the chapter... It (the government) is crossing the Rubicon by keeping the names pending like this," the court said, according to a report by NDTV.
Addressing AG R Venkataramani who was representing central government, Justice Kaul said, “Mr. Attorney General, I have ignored all press reports, but this has come from somebody high enough also with an interview... I am not saying anything else. If we have to, we will take a decision.”
The apex court noted that the government can express its objection but it cannot just hold on the recommendations without citing any ground. “You cannot hold the names back without stating your reservations. I did not comment on the High Court names since 4 months had not elapsed, but these names are pending since 1.5 years. You are frustrating then method of appointment, we only issued notice to find out problem,” the bench said.
The SC was hearing the plea made by Advocates Association of Bengaluru that noted the government’s decision to hold on the recommendations of the collegium contravenes the Second Judges case that not only upheld the collegium system, rather also said that consultation means concurrence.
Centre sends back files
The government expressed “strong reservations” about the recommended names as it sent back the files to the collegium on November 25, sources aware of the procedure to appoint Supreme Court and high court judges said.
Out of the 20 cases, 11 were fresh cases and nine were reiterations made by the top court collegium, they said.
Kirpal’s name was recommended by the Supreme Court Collegium, headed by then Chief Justice of India (CJI) N V Ramana, for elevation as a Delhi High Court judge.
Kirpal’s name was sent by the Delhi High Court Collegium to the collegium in October 2017 for elevation as a high court judge. But the top court collegium is learnt to have deferred deliberations on his name three times.
He had recently told NDTV that he believed the reason behind the limbo was his sexual orientation.
Justice Ramana’s predecessor, then CJI S A Bobde had reportedly asked the government to send more information on Kirpal. Finally, the collegium headed by Justice Ramana took a decision in favour of Kirpal in November 2021.
The government has returned all the names related to fresh appointments in various high courts on which it had “differences” with the Supreme Court Collegium, the sources said.
(with PTI inputs)
