Editorial

Govt’s unjust interference in appointment of Judges in Higher Judiciary, despite ignorable representation by underprivileged Societies

The unjust act of government of India in expressing its “strong reservations” about the recommended names as it sent back the files to the collegium on November 25, deliberately interfering into the procedure to appoint Supreme Court and high court judges.

Out of the 20 cases, 11 were fresh cases and nine were reiterations made by the top court collegium. 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. Saurabh Kirpal is the son of former CJI B N Kirpal.

Elevating of the sons and daughters and wives of former judges from particular community while ignoring the honest and sincere advocates from the underprivileged OBCs, SCs, STs and Muslim Minority Societies is against the very social justice to deserving categories.

Kirpal’s name was sent by the Delhi high court collegium to the SC 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 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 Supreme Court on Monday expressed anguish over the delay by the Centre in clearing the names recommended by the collegium for appointment as judges in the higher judiciary, saying it “effectively frustrates” the method of appointment.

A bench of Justices S K Kaul and A S Oka said a three-judge bench of the apex court had laid down the timelines within which the appointment process had to be completed. Those timelines, have to be adhered to in letter and spirit and larger interest of the nation with regard to the separation of power between the executive, the legislature and the judiciary.

Justice Kaul observed that it appeared the government was unhappy with the fact that the National Judicial Appointments Commission (NJAC) Act did not pass muster, but that cannot be a reason to not comply with the law of the land.

The apex court had in its 2015 verdict struck down the NJAC Act and the Constitution (99th Amendment) Act, 2014, leading to the revival of the Collegium system of existing judges appointing judges to constitutional courts.

During the hearing on Monday, the apex court told Attorney General R Venkataramani the ground reality is that the names recommended, including those reiterated by the apex court collegium, are not being cleared by the government.

“How does the system work?” the bench asked, adding, “Our anguish we have already expressed.”

“It appears to me, I would say, unhappiness of the government of the fact that NJAC does not pass muster,” Justice Kaul observed. Justice Kaul said sometimes laws pass muster and sometimes they don’t. “That cannot be a reason not to comply with the law of the land,” he said.

The top court was hearing a plea alleging “willful disobedience” of the time frame laid down by the apex court in its April 20 order last year to facilitate timely appointment.

It is time for the reconciliation by the collegium for appointment as judges belonging to the OBCs, SCs, STs, and Muslim Minority communities in the higher judiciary to generate confidence by these underprivileged communities.

There is no one either in the higher judicial collegiums in various High Court or Supreme Court or willfully ignoring Prime Minister Narendra Modi let Union government to garner confidence of the Muslim minorities in their learned advocates elevation to the higher judiciary.

This is despite All India Muslim Federation’s national president MA Mujeeb (affiliated to newly formed party Jana Parishad) in its Memorandum dated 18th April 2022 to then CJI Justice NV Ramana and expressed OBCs, SCs, STs and Minority communities concerns of their very ignorable representation in Higher Judiciary..