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2019, especially since nothing adverse prescribed time-frame within which It has become routine to hear that
regarding competence, conduct or in- this needs to be done. Clearing the some recommendations for High Court
tegrity of Justices Aniruddha Bose, and names of justices Gavai and Kant for appointments, as well as elevation to
A S Bopanna, has been pointed out,” the appointment, the collegium said: the Supreme Court, have met with dis-
Collegium said in its May 8 resolution. “While recommending the names of approval from the government. In such
Justice Bose is the Chief Justice of Justice Bhushan Ramkrishna Gavai instances, it requires reiteration by the
Jharkhand High Court whereas Justice and Justice Surya Kant, the Collegium collegium for the names to be cleared.
Bopanna is the Gauhati High Court has taken into consideration combined This need not always be a cause for
Chief Justice. Justice Gavai is presently seniority on all-India basis of Chief concern if it is a sign of some serious
a judge of the Bombay High Court and Justices and senior puisne Judges of consultation on the suitability of those
Justice Kant is the incumbent Chief High Courts, apart from their com- recommended.
Justice of the Himachal Pradesh High petence, conduct and integrity. The However, it acquires the character
Court. Against the sanctioned strength Collegium has also kept in mind the of a controversy if the government’s
of 31 judges, the apex court is presently desirability of giving due represen- objections suggest an oblique motive
functioning with 27 judges. tation on the Bench of the Supreme to thwart or delay the appointment of
For the second time in 12 months, the Court, as far as possible, to all the particular nominees.
Supreme Court collegium had asserted High Courts as well as to all sec- The Supreme Court is keen to fill up
itself against the executive on matters tions of the society including those the current vacancies. It has also recom-
of judicial appointments and insisted mended two more judges, Justice B.R.
on the elevation to the top court of two Gavai of the Bombay High Court
high court judges it has recommended, Last year, the govt and Chief Justice Surya Kant of the
and proposed two more names, includ- had locked horns Himachal Pradesh High Court, for
ing the first Scheduled Caste nominee appointment to the apex court. If
to the bench in a decade. The collegium, with the judiciary, all these four recommendations go
which comprises the five senior-most refusing to clear the through, the court will have its full
judges of the Supreme Court led by the complement of 31 judges.
Chief Justice of India, reiterated its April name of Justice KM The process of filling up vacancies
recommendation that Jharkhand high Joseph for elevation depends on the relative speed with
court chief justice Aniruddha Bose and which the collegium initiates propos-
Gauhati chief justice AS Bopanna be to the top court, als for appointments and makes its
appointed to the apex court. saying there were recommendations after internal delib-
This is the second time in a year that erations, and the time the government
the government and judiciary have more senior judges takes to process the names.
locked horns over the appointment As on May 1, the total number of
of judges. Last year, the government than him in the queue vacancies in all the High Courts is 396. It
had locked horns with the judiciary, is true that the filling up of vacancies is
refusing to clear the name of Justice KM belonging to SC/ST/OBC categories, a continuous and collaborative process
Joseph for elevation to the top court. women and minorities.“ involving the executive and the judici-
The government cited two reasons for With the recommendation of Jus- ary, and there cannot be a time frame
its decision: There were more senior tice Gavai to the Supreme Court, the for it. However, it is time to think of a
judges who deserved elevation and top court has a Scheduled Caste judge permanent, independent body to insti-
the Kerala High Court was already on the bench after a gap of a decade. tutionalise the process.
adequately represented in the ST and OBC are short for Scheduled The known inadequacies of the
Supreme Court. Tribe and Other Backward Class, collegium system and the mystery
The opposition claimed that the respectively. Clearing the air that the over whether a new memorandum of
judge was being targeted for ruling recommendation of justice Gavai — procedure is in the offing are reasons
against imposition of President’s Rule he happens to be fourth with respect why the proposal for a constitutionally
in Uttarakhand three years ago. The to seniority among judges from the empowered council to make judicial
government was forced to accept his Bombay high court — the collegium appointments ought to be revived —
elevation when the collegium reas- said: “His recommendation, in no way, of course, with adequate safeguards to
serted its choice and Justice Joseph took is to be misconstrued to mean that preserve the judiciary’s independence.
oath in August last year. three senior-most Judges from Bombay The time may have come for a systemic
Once the Collegium reiterates its High Court (two of whom are serving and processual overhaul.
recommendation, the government as chief justices) are less suitable than
has to accept it, although there is no Justice Gavai.” letters@tehelka.com

Tehelka / 31 may 2019 45 www.Tehelka.com