In a first, Modi govt changes collegium’s recommendation on HC judge’s appointment

Source – theprint.in

New Delhi: For possibly the first time since the collegium system was introduced, the Centre has unilaterally amended the recommendation of the judicial appointments body to apply its own writ, considered a violation of settled law and procedure.

Last month, the Supreme Court collegium had recommended that Punjab and Haryana High Court additional judge Ramendra Jain be made a permanent judge, but the Centre has only given him a six-month extension.

Jain was appointed as additional judge on 20 April 2015 for a two-year term and given a year’s extension last year.

The latest decision may further open the Modi government to allegations of overreach in matters of judicial appointments.

According to settled law as well as the Memorandum of Procedure (MoP), the set of rules that guides appointments to the higher judiciary, judges of the Supreme Court and the high courts are appointed by the President on the recommendation of the Supreme Court collegium.

“This is unconstitutional and highly arbitrary since the government has, in this case, virtually assumed the role of the collegium,” said a former Chief Justice of India about the Justice Jain episode.

“How could the government issue such an order when the Supreme Court collegium said he should be made a permanent judge? I don’t think the collegium met again, before the appointment was notified by the President, to amend its recommendation,” he added. “This is a very worrying sign and the Chief Justice of India and senior Supreme Court judges who constitute the collegium should have taken strong exception to such a blatantly unconstitutional diversion by the government.”

A senior SC judge expressed surprise over the move, saying, “How can the government on its own decide such a matter? As per settled law, the recommendation of the Supreme Court collegium, if it has been reiterated, is binding on the government.”

“I don’t think there is any confusion that unless the Supreme Court collegium amends its recommendation, the Centre has no choice but to go by it. I hope the chief justice will do something to check this arbitrary action, possibly take it up on the judicial side suo motu,” the judge added.

A former secretary in the department of justice was also unequivocal. “I don’t understand how the collegium accepted this and allowed this to happen. This is patently unconstitutional,” the former secretary said.

“There must be some push-back from the Supreme Court because, in my view, this is just the beginning. The government is testing waters and unless the Supreme Court collegium puts its foot down, you can expect more of such things to happen,” the former bureaucrat added.

To emphasise the lack of precedent for the move, a former CJI recalled how, when a Constitution bench of the Supreme Court was hearing the National Judicial Appointments Commission (NJAC) case, the tenure of several additional judges was about to end. “The government requested the bench to pass some interim order so as to allow these judges to continue, and the bench did so. The government didn’t go and extend their tenure on its own – it required an order on the judicial side to do so,” he added, “What has happened now is very surprising and unconstitutional, in my view.”

What the case is about

On 26 March this year, the Supreme Court collegium recommended that Justice Jain be appointed as a permanent judge of the Punjab and Haryana High Court.

At the meeting where the decision was taken, the collegium said it was making the recommendation after “taking note of observations of the department of justice made in file relating to impending transfer of Mr Justice Ramendra Jain to Karnataka High Court”.

It asked the Centre to process the recommendation “expeditiously” in view of the fact that Justice Jain’s term was due to end on 19 April.

However, the Centre sat on the recommendation – something that is said to have become the norm of late, a fact noted with dismay by one of the most senior judges of the Supreme Court, Jasti Chelameswar, in his letter to Chief Justice of India Dipak Misra last month.

ThePrint had first reported Chelameswar’s letter on 28 March.

After waiting for the Centre to act, the Supreme Court collegium reiterated its recommendation on 17 April, two days before Justice Jain’s term was to end. It also told the Centre that the issue of his transfer had already been dealt with on 12 July 2017, recording “specific reasons for retaining him in the Punjab and Haryana High Court”.

The Centre, however, ignored the recommendation, and extended Justice Jain’s tenure by six months, barely hours before his term was to end. Owing to the last-minute decision, the Chief Justice of the Punjab and Haryana High Court called some judges to the court in the evening to swear in Justice Jain for the extended term.

‘Interference in the judiciary’

Since assuming office, the Modi government has been accused of several attempts to control judicial appointments and transfers: From getting Parliament to pass the NJAC Bill, which was later struck down by the SC, to sitting on Supreme Court collegium recommendations without any explanation, and stalling the transfer of several judges.

There have been several appeals, including by Supreme Court judges, to CJI Dipak Misra to take action in this regard, but he is yet to.

In this light, Chelameswar’s letter to the CJI and his brother judges was significant. In it, he had underlined that “for some time, our unhappy experience has been that the government’s accepting our recommendations is an exception and sitting on them is the norm”.

He had also observed that “inconvenient” but able judges or judges-to-be were “being bypassed through this route”, saying the issue was “now ripe for the consideration of the full court… if this institution really is to be any more relevant in the scheme of the Constitution”.

Days later, another member of the Supreme Court collegium, Justice Kurian Joseph, also wrote to the CJI, underlining that the “very life and existence” of the apex court was under threat.

By not implementing the collegium’s recommendations, Joseph wrote, the government is sending a “strong message” to “all judges down the line not to cause any displeasure to the executive lest they should suffer”. “Is this not a threat to the independence of the judiciary?” he added.

“… It is the first time in the history of this court where nothing is known as to what has happened to a recommendation after three months,” he said.

“The government owes a duty to take a call on the recommendation as soon as the same is sent by the collegium. Failure to discharge their duty by sitting over on the recommendations of the collegiums…, in administrative law, is abuse of power…” Justice Joseph wrote.

“The dignity, honour and respect of this institution is going down day by day since we are not able to take the recommendations for appointment to this court to their logical conclusion within the normally expected times,” he added.

Both judges were referring to, among other issues, the Modi government sitting on the Supreme Court collegium’s recommendation to elevate Uttarakhand High Court chief justice K.M. Joseph and senior lawyer Indu Malhotra to the apex court, and senior Karnataka judicial officer P. Krishna Bhat – whose name was cleared twice by the Supreme Court collegium – as a high court judge.

A bench headed by Joseph had set aside the imposition of President’s Rule in Uttarakhand by the Modi government.

However, so far, the CJI has not spoken on the issue.