Selective ‘pick and choose’ in appointment of judges a troublesome aspect: SC to Centre

New Delhi: The Supreme Court on Tuesday flagged the Centre’s 'pick and choose' approach in clearing names of candidates for appointment as judges to the higher judiciary.

Voicing its displeasure once again, a bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia said it hopes that a situation would not come where it or the Collegium may have to take some decision which may not be palatable.

Attorney General R Venkataramani, for the Centre, submitted that many things have been put on a fast track and that things will be better maybe after a week or ten days.

"As of now there are five names which are pending, second time reiterated now. Apart from that 14 names which are pending. Now, troublesome aspect of these 14 names is you appointed number 3,4,5 but not number 1, 2. They lose out on seniority, this is not acceptable. I will never be able to suggest to anyone to accept judgeship who has reasonable practice, why should he put his neck on the block,” Justice Kaul said.

The bench said that sometimes there are Intelligence Bureau (IB) reports, Centre’s opinion, and not even 50 per cent of names of candidates get cleared for appointment as judges.

The AG said some names were expedited.

"I appreciate that. But this pick and choose. I flag this issue because people who are senior, they will lose out and they will be dropped. There are 14 names of this nature which are pending with you. We have hardly anything pending with us. In Punjab and Haryana High Court, out of 9 candidates, we cleared 5 candidates. Two of them we did not clear, two of them we sought further inputs,” the bench said.

“I pose a question to myself, how do I persuade a young competent lawyer with good practice at the bar to make a sacrifice by accepting a position on the bench. I am unable to say this today,” Justice Kaul said.

The bench said if the names are getting processed now, it should mean all of them and that this selective business is not correct.

Advocate Prashant Bhushan, representing a petitioner, said it is very unfortunate that despite several assurances given by AG, nothing is happening.

As the AG strongly opposed the submissions, Bhushan said, “Please do not try to brow beat, the court has given the government more than a long rope in the matter. There are instances where reiterations were made several years ago. How long can this go on and they are still segregating. It cannot go on indefinitely.”

Bhushan said the time has come for lordships to crack the whip otherwise the government is getting the impression that it can get away with anything.

“You have to summon the law secretary for contempt or the law minister. Let them come and say we have instructions from higher up,” he said.

Senior advocate Arvind Datar, representing a petitioner, said it should not need nudging from the court again and again and if a timeline is set then by default, it should be followed.

Bhushan said, “What is being done today by the government is effectively amounting to veto in the selection by the collegium, it is much worse.”

Justice Kaul said there should be an element of trust, once we take cognizance of the government’s concern that should be the end of it. Bhushan said: “Your lordships have been far too gentle in this matter. Being gentle is not working, for over so many months.”

Justice Kaul said, “it is difficult for me to change my attitude at the tail end of my career".

The bench fixed the pleas filed by the Advocates Association Bengaluru and Centre for Public Interest Litigation over delays in appointing judges, for further hearing on November 20.