Collegium not search committee for appointment of judges; govt can't exercise discretion: Supreme Court

New Delhi: The Supreme Court on Friday said the Collegium is not a search committee where the government can exercise its discretion with regard to appointment of judges.

The top court asked the Union government to provide details of Collegium recommendations related to the appointment of High Court judges, which have been pending despite reiterations.

A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra asked Attorney General R Venkatramani to give a chart in this regard and posted a batch of petitions for consideration next week.

The court also noted some of the appointments of High Courts' Chief Justices are likely to be made.

"Let's push back this case, some appointments are to be cleared," the bench said.

The Attorney General agreed to provide details of the pending recommendations but raised preliminary objections to the writ petitions questioning the delay in appointment of judges.

Senior advocate Kapil Sibal, appearing for the Jharkhand government, said it was unfortunate as the recommendation for appointment of the High Court's Chief Justice was kept pending.

Advocate Prashant Bhushan raised the issue of senior advocate Saurabh Kirpal, who disclosed his sexual orientation as gay. He said the Collegium recommendations, which have been reiterated, must be deemed to have been appointed after a reasonable time, as the government kept on sitting on some of the names for months altogether.

Addressing the Attorney General, the bench asked him to prepare a chart and showing the difficulty in issuing notification.

"You tell us the reasons why those appointments have not been made. Which are the matters reiterated and why those are pending," the bench asked him.

The Jharkhand government has filed a contempt petition in the Supreme Court against the Union government's top officer, in view of extraordinary delays in the appointment of judges to the state High Court as well as the rest of the High Courts across the country, saying it is detrimental to the cherished principle of the independence of the judiciary.

It claimed the inordinate delays in the appointment of Chief Justices to the High Courts after the recommendation by the Collegium headed by the Chief Justice of India, is a direct contravention of the judgment of October 6, 1993 passed by a bench of nine judges of this court in the Second Judges case, and more specifically the order of April 20, 2021 in M/s PLR Projects Pvt Ltd Vs Mahanadi Coalfields Ltd.

The state government pointed out on July 11, the Collegium had transferred Justice M S Ramachandra Rao, Chief Justice of Himachal Pradesh High Court as Chief Justice of the Jharkhand High Court. However, the recommendation is still pending consideration before the Union government.

On January 19, 2023, the Supreme Court Collegium headed by Chief Justice of India D Y Chandrachud had reiterated its November 11, 2021 recommendation on openly gay senior advocate Kirpal as Delhi High Court judge while rejecting the Union government's objections about his sexual orientation and Swiss partner.

On September 17, 2024, the Supreme Court Collegium had changed its previous recommendations with regard to appointment of Chief Justices of three High Courts of Jammu and Kashmir and Ladakh, Madhya Pradesh and Himachal Pradesh, which are still pending considerations before the government.

On July 11, the Collegium had approved the names of Chief Justices of other High Courts, including Madras, Kerala and Delhi, which are pending before the government.