Govt Doesn’t Appoint 27 Judges, Dodges Questions from Tharoor

Reply to Shashi Tharoor in Parliament shows 27 Collegium recommendations pending.

MP Shashi Tharoor asked the Law Ministry for details on recommendations from the Supreme Court Collegium

(Photo: Arnica Kala/The Quint)

In a startling revelation, the Ministry for Law and Justice has revealed that 27 recommendations from the Supreme Court Collegium (for appointment of judges to the High Courts and Supreme Court) are currently pending with the Centre.

The Ministry’s statement comes as a response to an unstarred question by Congress MP Shashi Tharoor in the Lok Sabha during the ongoing Monsoon Session of Parliament.

The reply by the Ministry is not just important in terms of what it does say, but also what it doesn’t. Tharoor had not merely asked for the number of pending recommendations, but also:

1. the names of all those who were recommended for appointment since May 2014, along with the dates of their recommendation;
2. the number of recommendations reiterated by the SC Collegium after the Centre sent them back for reconsideration;
3. the names of those reiterated by the SC Collegium
4. whether the government is taking steps to dispose of pending recommendations in a time-bound manner.

The government failed to provide answers to any of these other questions, and indeed appears to have actively avoided answering them, instead including a long-winded explanation regarding the NJAC which was struck down by the Supreme Court in 2015 and the yet-to-be finalised Memorandum of Procedure.

The reply gives no reasons for failing to answer the questions.

The figure of 27 pending recommendations includes those reiterated by the SC Collegium, but despite a specific request for how many of these were reiterations, this was not disclosed.

The Law Ministry did reveal that 5 recommendations had been sent back to the Collegium for reconsideration, but again, despite the specific request, failed to disclose their names. These presumably include four lawyers recommended by the Supreme Court for elevation as high court judges, according to ThePrint, the government sat on the files for two years before responding.

The recent controversy regarding the appointment of Justice KM Joseph highlighted the disputes between the Centre and the judiciary over appointments. The habit of the government to sit on files led to the former Chief Justice TS Thakur breaking down over the Centre’s behaviour in April 2016.

Government Refused RTI Request for Information

What makes this information even more interesting is that in May 2018, an RTI request from advocate Paras Nath Singh asking for the number of pending recommendations was refused by the Department of Justice, as reported in The Leaflet.

The Department of Justice denied his request on the grounds that the Supreme Court had passed a stay order against release of such information on 4 December 2009 in the case of CPIO vs Subhash Chandra Agarwal.

However, The Quint has found that while there was an interim stay passed in this case, the case deals with a different issue – whether or not the Supreme Court is obliged to provide copies of its correspondence with the government over appointment of judges.

In particular, that case deals with a request for the correspondence between the Supreme Court and the PMO over the appointment of Justices HL Dattu, AK Ganguly and RM Lodha. A mere request for the number of recommendations would not fall within the scope of any interim stay passed in this case, which means the RTI should not have been refused.

That the Ministry of Law and Justice (within which the Department of Justice falls) should now find itself able to provide details on the pending recommendations, makes its response to the RTI seem very dubious, as does its avoidance of several questions from Dr Tharoor without providing any reasons.

Recommendations Pending With Supreme Court

Although Dr Tharoor did not ask a question relating to this, the Ministry’s answer also notes that 143 recommendations from various high court collegiums are pending with the Supreme Court collegium. The high court collegiums are meant to send recommendations for appointments to the Supreme Court suggesting names of lawyers and lower court judges for appointment to the high courts.

This number also seems quite large, but is more understandable since there are 24 high courts and the Supreme Court has to consider recommendations from all of them. In addition, the Supreme Court collegium has full discretion when it comes to these recommendations, unlike the Centre which only gets to send files back for reconsideration once, after which they have no choice but to accept them.

It is also strange that the Ministry decided to include this information in the reply since this information falls within the Supreme Court’s purview, not the Ministry’s, since these recommendations would not yet have been sent to the Centre.

You can find the full text of the questions and answers below: