Centre changes collegium’s recommendation on HC judge’s appointment

New Delhi: The Central Government has unilaterally amended the recommendation of the judicial appointments body to apply its own writ, theprint.in reported. The move is considered to be a violation of settled law and procedure.

Since the collegium system was introduced, possibly it is for the first time since the collegium system was introduced, the centre has unilaterally altered judicial appointments body’s recommendation.

Last month, the Supreme Court collegium had recommended that Punjab and Haryana High Court additional judge Ramendra Jain be made a permanent judge, but the Centre has only given him a six-month extension.

Jain was appointed as additional judge on 20 April 2015 for a two-year term and given a year’s extension last year.

The latest decision may further open the Modi government to allegations of overreach in matters of judicial appointments.

According to settled law as well as the Memorandum of Procedure (MoP), the set of rules that guides appointments to the higher judiciary, judges of the Supreme Court and the high courts are appointed by the President on the recommendation of the Supreme Court collegium.

“This is unconstitutional and highly arbitrary since the government has, in this case, virtually assumed the role of the collegium,” said a former Chief Justice of India about the Justice Jain episode.

“How could the government issue such an order when the Supreme Court collegium said he should be made a permanent judge? I don’t think the collegium met again, before the appointment was notified by the President, to amend its recommendation,” he added. “This is a very worrying sign and the Chief Justice of India and senior Supreme Court judges who constitute the collegium should have taken strong exception to such a blatantly unconstitutional diversion by the government.”

A senior SC judge expressed surprise over the move, saying, “How can the government on its own decide such a matter? As per settled law, the recommendation of the Supreme Court collegium, if it has been reiterated, is binding on the government.”

“I don’t think there is any confusion that unless the Supreme Court collegium amends its recommendation, the Centre has no choice but to go by it. I hope the chief justice will do something to check this arbitrary action, possibly take it up on the judicial side suo motu,” the judge added.

A former secretary in the department of justice was also unequivocal. “I don’t understand how the collegium accepted this and allowed this to happen. This is patently unconstitutional,” the former secretary said.

“There must be some push-back from the Supreme Court because, in my view, this is just the beginning. The government is testing waters and unless the Supreme Court collegium puts its foot down, you can expect more of such things to happen,” the former bureaucrat added.

To emphasise the lack of precedent for the move, a former CJI recalled how, when a Constitution bench of the Supreme Court was hearing the National Judicial Appointments Commission (NJAC) case, the tenure of several additional judges was about to end. “The government requested the bench to pass some interim order so as to allow these judges to continue, and the bench did so. The government didn’t go and extend their tenure on its own – it required an order on the judicial side to do so,” he added, “What has happened now is very surprising and unconstitutional, in my view.”