Selective clearing of collegium recommendations disrupts seniority of judges: SC tells govt

SC warns government of selective appointment from collegium recommendations

The Supreme Court on November 20 told the Attorney General for India (AG) that when the government clears certain recommendations for appointment or transfer of judges to high courts without clearing its previous recommendations, it creates disruption in seniority of judges.

The SC noted that when a collegium recommendation for transfer or appointment of a judge is kept pending and a subsequent recommendation for the same high court is cleared, the seniority of the judge whose recommendation has been kept pending gets affected.

Seniority in appointments play a key role in a judge's career in elevation to the Supreme Court and in being appointed as the chief justice of a high court.  The apex court also noted that such actions dissuade candidates from taking up judgeship.

The Guwahati High Court recently deferred the swearing-in of a judge because the government had cleared his name ahead of the name of a judge whose appointment was recommended earlier.  The judge's name was recommended by the SC Collegium on October 17, along with the name of lawyer N Unni Krishnan Nair’s name for judge of the HC. While the resolution placed Nair’s name first, the government cleared the name of the judge placed after him. As a result of this, Nair, even if appointed, would be lower in order of seniority.

The court also highlighted that a total of six recommendations for transfer of judges from one high court to another are pending with the government now. Of the six, four are from the Gujarat HC while the other two are from other high courts.

The AG assured the court that steps would be taken on this issue by the next date of hearing on December 5.

As per the existing norms, once a high court collegium recommends a candidate for judgeship, it is forwarded to state government for opinion. The state forwards it to the Centre for inputs. The government conducts a series of background checks through intelligence agencies and sends it to the SC collegium with inputs. The entire process is expected to be completed within a period of four months.

The SC has warned the Centre a few times since November 2022 over the delay in processing collegium recommendations. In February 2023, the SC warned the Centre of unpalatable actions if the recommendations are not processed on time.

The Supreme Court was hearing a plea pertaining to the delay in clearing names for elevation proposed by the collegium. As per the Supreme Court’s judgment in PLR Projects versus Mahanadi Coal Fields (2019), once the collegium reiterates its recommendation for an appointment, the Union government cannot delay in clearing the person’s appointment. In 2015, the Supreme Court upheld the validity of the collegium system in the National Judicial Appointments Commission (NJAC) case.