Above: The Allahabad High Court has 92 judges and 68 vacancies

The sending back of files relating to judges of the Allahabad High Court by the centre is a signal that the government wants to have a say on the issue

~By Rangoli Seth

When the Union government returned the Supreme Court collegium’s recommendation for the appointments of two lawyers to the Allahabad High Court, it was only adding to the turf battle that has been raging between the Executive and the Judiciary for quite a while now.

It was the second time that the NDA government had returned the file recommending the names of Mohammad Mansoor and Basharat Ali Khan by the Collegium. The first time when it was returned was in 2016. The centre had then cited complaints against the two lawyers which the Collegium stated to be “frivolous”. Moreover, the recommendations were returned by the government to the Collegium for reconsideration after keeping the matter pending for over two-and-a-half years.

With Justice J Chelameswar having retired, the five-member Collegium—comprising the chief justice of India and four seniormost judges—will have to be reconstituted. The Collegium will now have to add a new member to decide on the matter once again. How long that will take is anyone’s guess.

A quick perusal of the situation in various high courts across the country paints a dismal picture. In the high courts of Mumbai, Calcutta, Chhattisgarh, Delhi, Gauhati, Gujarat, Jammu and Kashmir, Jharkhand, Karnataka, Madras, Madhya Pradesh, Punjab and Haryana, and Tripura, a total of 143 appointments are pending but the one that faces the worst situation is the Allahabad High Court which has a sanctioned strength of 160 judges, out of which only 92 seats are currently occupied.

While the government has quoted “complaints” against the two senior lawyers to block their elevation as possible judges, they are, strangely, standing counsels in the Allahabad High Court for the Yogi Adityanath government. Mohammad Mansoor was the chief standing counsel when he defended the UP government’s decision to nominate the anti-eve teasing police squad, popularly known as the “Anti-Romeo Squad”.

Mansoor is the son of former Supreme Court judge late Saghir Ahmed who headed a working group formed by then prime minister Manmohan Singh on centre-state relations with special reference to Jammu & Kashmir. The group in its 2009 report recommended autonomy as a solution to the Kashmir problem. The report also recommended that the issue of whether to persist with Article 370 or abrogate it should be left to the will of the people of the state.

Traditionally, if the Collegium decides to recommend a judge’s name for promotion, the government cannot stop the appointment, but can “sit on the file” for an indefinite period of time. In the Second Judges’ Case, the Supreme Court held that “the question of primacy of the role of the Chief Justice of India in the context of appointment of Judges in the Supreme Court and the High Courts must be considered in this backdrop for the proper picture of the constitutional scheme to emerge from the mixture of various hues, to achieve the constitutional purpose of selecting the best available for composition of the Supreme Court and the High Courts, so essential to ensure the independence of the judiciary, and, thereby, to preserve democracy.”

Apart from the Allahabad case, the government has also returned the name of advocate Nazir Ahmed Beig for elevation as the Jammu and Kashmir High Court judge with no concrete reason of rejection. The names of Wasim Sadiq Nargal, Sindhu Sharma and district judge Rashid Ali Dar are under process by the law ministry.

Though the Collegium is not a constitutionally sanctioned body, it recommends appointments and transfers of judges. Three months after it took office, the Modi government had in May 2014 recommended the formation of the National Judicial Appointments Commission (NJAC) as a constitutional body to replace the collegium system of appointments of judges. But the Supreme Court rejected the NJAC Act and since then the battle for supremacy has been raging.

Last month, it reached a near flashpoint with the government lashing out at the Collegium in the apex court for recommending only a few names when there were scores of vacancies in courts. The Supreme Court, in turn, blasted the centre for keeping the names recommended by the Collegium pending. “Tell us, how many names (recommended by the Collegium) are pending with you,” a bench comprising Justices Madan B Lokur and Deepak Gupta asked Attorney General (AG) KK Venugopal. When the AG said: “I will have to find out”, the bench virtually taunted him saying “When it comes to the government, you say ‘we will find out’”.

The strong remarks by the bench came after Venugopal said that though the Court was dealing with a matter relating to the vacancy of judges in the high courts of Manipur, Meghalaya and Tripura, the fact was that the Collegium has been recommending only three names for high courts where the vacancy was for 40 judges.

Also in recent times, the Executive and Judiciary have locked horns over the elevation of Uttarakhand High Court Chief Justice KM Joseph as a judge of the apex court. As in the latest case involving the Allahabad High Court, the collegiums had unanimously decided to re-recommend Joseph’s elevation after the government had vetoed it the first time. Critics had then said that the NDA government’s objection to Joseph’s elevation was the judgment he delivered in 2016 to overturn President’s rule imposed by the centre in Uttarakhand. The latest government rebuff to the Collegium is a sign that there will be no early end to the turf battle.