The ongoing turf war between the Government and the Judiciary witnessed a showdown at the Supreme Court when the Center took the Collegium head on for recommending few names to fill up massive vacancies in the High Courts.
The bench was hearing a matter related to the vacancy of judges in High Courts in the Northeastern states after a petition was filed by a man seeking a transfer of his case from the Manipur High Court to Gauhati High High Court. During the hearing, AG Venugopal referred to a resolution where the Collegium recommended that Justice Serto should continue operating from the Gauhati high Court despite being appointed to the Manipur High Court and remarked that it was “very strange”. “That time, only two judges were there in Manipur High Court. It should not have been said that he (Justice Serto) would continue in Gauhati High Court. It was necessary to bring him back to Manipur High Court,” he said. The bench replied, “maybe the Collegium does not want to get him back to Manipur. We do not know.”
“I don’t know, I will have to find out,” said Attorney General KK Venugopal when the Bench inquired how many names recommended by the Collegium were pending with the government to which the bench retorted, “when it comes to the government, you say ‘we will find out'”.
The Attorney General said, “The Collegium will have to see the broad picture and recommend more names,” before adding, “some high courts have 40 vacancies and recommendation of the Collegium is only for three. And the government is being told that we are tardy in filing up the vacancy”.
The most recent source of conflict between the two pillars of democracy was the recommendation of the Collegium to elevate Justice Joseph to the Supreme Court. According to reports, the Collegium had deferred the decision on reconsidering Justice Joseph’s elevation to the Supreme Court after the government sent it back. Reports had emerged which quoted a source stating that the Collegium was of the view that it will “not send any other names for elevation to the Supreme Court, at least until as long as this Collegium is in place” if the Center did not approve Justice Joseph’s recommendation by the Collegium.
The Center is, however, of the view that Justice Joseph’s elevation would give “seniority and regional representation a go-by.” Justice Joseph features quite low on the seniority list of High Courts Judges and there is already another judge at the Supreme Court who hails from Kerala and is a member of the Christian community. As was decided in Second and Third Judges Cases, these factors contribute towards elevation to the Supreme Court. The Center claims that it duly followed the Memorandum of Procedure (MoP) which was finalized by the Collegium on March 13, 2017. The MoP said in paragraph 5, “In case of elevation of a chief justice of an HC or a judge of the HC as a judge of the Supreme Court, a fair representation shall be given to all HCs. The criterion of ‘seniority’ as an HC judge, subject to merit and integrity, will be followed.”
In a letter to CJI Dipak Misra in April, Justice Kurian Joseph accused the government of abusing its power and sitting on the recommendations of the Collegium for months. “Failure to discharge their duty by sitting over on the recommendations of the Collegium doing nothing, in administrative law, is an abuse of power. More than anything else, it sends a wrong message which is loud and clear 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 wrote in his letter.
The primary conflict between the Legislature and the Judiciary arose when the NJAC which was passed by the Parliament and State Assemblies was struck down by the Supreme Court to continue the Judiciary’s monopoly over the appointment of Judges to the Courts. At one point during the showdown, Mr Venugopal remarked jocularly, I think NJAC was a better option to have.” It is still unclear, meanwhile, how the current predicament will be resolved.