The Supreme Court on Thursday took objection to the Central government citing opinions of certain judges against the Collegium system, as an excuse to delay clearance to the recommendations made by the Collegium.

A bench of Justices Sanjay Kishan Kaul, Abhay S Oka, and Vikram Nath said that the law regarding judicial appointments to the High Courts and the Supreme Court has been settled by the 2015 Constitution bench decision of the top court which upheld the Collegium system in the National Judicial Appointments Commission case (NJAC case).

"You have conveniently picked up some views of the judges and included that. How can that be done? You may want some changes but in the meantime collegium along with the existing Memorandum of Procedure (MoP) has to work. Now it looks just like a blame game," the Court said.

Hence, the government cannot conveniently pick and choose the opinions of judges or judicial opinions of benches of lesser strength to delay Collegium recommendations, the Court remarked.

"Our judgment came in 2015, then you come to 2022. When five judges of the court takes a decision becomes final. Am I reading it correct or am I wrong," the bench asked.

In this regard, the Court also took objection to the stance of the government that the new Memorandum of Procedure (MoP) which lays down the procedure for appointment of judges to High Courts and the Supreme Court, is yet to be finalised.

The Centre had cited the opinions of Justices Ranjan Gogoi and Jasti Chelameshwar on the MoP.

"You say Justices Ranjan Gogoi and Chelameshwar said that MoP needs a relook. But then so what.. even if two judges opine something.. how does it change the collegium decision," the bench demanded.

The Court then noted in its order that the MoP issue has been settled as early as 2017.

"We may notice that in the judgment from which present contempt proceedings arise, the aspect of MoP was finalised on March 10, 2017 identical to the 1993 one," the Court said.

Hence, the opinion of two Supreme Court judges in a case from Calcutta on the Collegium cannot defeat the ruling in NJAC judgment and the MoP as finalised in 2017 has to apply.

"There was a suo motu case against a calcutta hc judge and two judges of this court had given an opinion on the collegium system. Attorney General (AG) says aforesaid gave rise to a thought that there needs to be improvement in the MoP. Government has, thereby, addressed some communications and appointment under 224A was frowned upon. We have told the AG that MoP is final and till govt suggestions are looked into, MoP as finalised has to apply," the Court directed.

It was hearing a petition related to the delay in approving names for elevation proposed by the Collegium.

The Court had during an earlier hearing urged the Central government to process recommendations of the Collegium that have been pending for the last one-and-a-half years.

The government had filed a response in the matter which the Supreme Court proceeded to examine on Thursday.

The Court said that the 2015 judgment clearly laid down the law and the appointment have to happen even if it is by the old MoP.

"You are saying MoP to be finalised. There is nothing to be finalised. You say 2021 judgment to be included which grants you expanded time.. but nothing to be finalised," the bench said.

The bench underscored that while changes to MoP can be considered, that cannot be cited to delay judicial appointments recommended by the Collegium.

"How can Centre say MoP has to be revisited only since two judges made some observations. Can the Union latch onto the observations and delay it? It is not that MoP is pending. It was over in 2017 and the judgment says so and I know it as well," the bench said.

The Court said that while the government might have sent letters to the Supreme Court seeking changes to the MoP, the ultimate call in that regard is the prerogative of the Collegium.

"Centre might have sent later communications seeking a change.. but those letters will not unsettle the MoP. But it is the collegium to take a call. Government can have a view," the bench said.

"When the collegium gave something on how the MoP should be irrespective of what suggestions you gave that is supposed to be the end of it. No back and forth. Can observation of two judges weigh down the final view of the collegium," the bench further queried.

"Would the letter mean nothing.... I believe the MoP issue is still pending," asked Attorney General R Venkataramani.

"There is an existing MoP and you think some changes are desirable and it is like you want a change in legal process but that does not change the settled law," the Court maintained.

The Court in its order exhorted the Central government to follow the law laid down by it and ensure that Collegium recommendations are cleared within reasonable timeline.

"Sending back second time reiterated names is a breach of our earlier direction. AG submits in such a scenario earlier, such sent back names were actually dropped. We don't know why the names were dropped," the Court said.

It urged the Attorney General to play a constructive role.

"The scheme of our constitution requires our court to be final arbiter of law. Parliament has right to enact a law but the power to scrutinize it lies with the court. It is important that the law laid down by this court is followed, else people would follow law which they think is correct," the Court said.

References:

barandbench.com