The confrontation between the central government and the Supreme Court Collegium over the appointment of judges seems unlikely to be resolving anytime sooner. And the reason for that is likely to be a controversial list of 13 names for the Allahabad High Court that the Central government wants removed.
According to reports, the Narendra Modi-led Bharatiya Janata Party (BJP) government Centre on Monday once again sought reconsideration of 13 names that the SC collegium had iterated in November for the Allahabad High Court, marking a departure from tradition, The Telegraph said.
There has been a mutual squabbling between the NDA government and the judiciary over 550 vacancies in various high courts against the sanctioned strength of 1,041 after the Supreme Court struck down the National Judicial Appointments Commission in October 2015. And while it was said to be an "ego" issue, latest reports have suggested that it's likely to be 13 names that the central government didn't want in the Allahabad high court. The Centre has approved all the names recommended by the collegium accept 13.
The collegium had recommended around 151 names since February this year for the high courts. Of these, the Centre had cleared the appointment of 51 judges. On 11 November, the government sent back 43 the 77 names recommended by the collegium. A week later, the collegium iterated 37 of the 43 names. Traditionally, the Central government accepts the names suggested by the collegium, once it's iterated, but this time around, the central government has sought for some time before clearing the appointments.
The request for reconsideration came in a hearing on Monday headed by Justices AM Khanwilkar and DY Chandrachud when the apex court asked Attorney-General Mukul Rohatgi to explain the delay in carrying out an order issued in April last year to transfer a judge from the Gujarat High Court. Rohatgi then told the bench that the process is on..., adding, "Out of the 37 names reiterated, we have sent a fresh file today containing 13 names from Allahabad High Court for reconsideration as we have found some inconsistencies," The Asian Age reported.
However, the real reason, says a Times of Indiareport could be something else. According to the newspaper, these thirteen names are the reason behind the ongoing confrontation between the SC and the Narendra-Modi-led government. In January, Supreme Court Collegium had recommended only eight of the 19 advocates that were approved by the HC collegium, rejecting 11". There were some notable exclusions, which a source told the newspaper, did not go down well with the government.
"In August, the SC collegium again recommended only 27 names out of 44 suggested by the Allahabad HC. Some of those rejected by the apex court collegium were relatives of former judges and politicians. Out of 30 advocates recommended by the Allahabad HC collegium, the apex court collegium considered only 19 while the rest were from the judicial service," the report said quoting a source.
The Supreme Court and the central government have been at loggerheads, ever since the Supreme Court struck down the National Judicial Appointments Commission, calling it unconstitutional in October 2015. The commission was brought to replace the 1993 collegium system for the appointment of judges to the Supreme Court and the high courts allowing the executive to have a final say on the appointment of judges and not the judiciary which is the situation at the moment.
The ongoing scuffle has prevented appointments as well transfer of old and new judges in high courts across India. Chief Justice of India TS Thakur had earlier blasted the central government for its lackadaisical attitude, stating that the government should rather "lock the courts" as the government's inaction is "decimating the institution (judiciary)".
The apex court had earlier sought for a memorandum of the procedure (MoP) from the central government to improve the functioning of the collegium, however, it didn't agree with the first draft. The central government then submitted a second draft, which is, reportedly with the collegium. The disagreement over the MoP was thought to be the main reason behind the stand-off between the centre and the Supreme Court. Looking at the centre's attitude, the ugly confrontation between the judiciary and the executive over appointments to the higher judiciary might continue in 2017, however, the new revelations are likely to change the public perception of the matter.