Bar & Bench (www.barandbench.com) 6 indefinitely sitting on these names that have been reiterated by the Collegium and thus subverting the appointment process by these dilatory tactics. Besides this the Collegium has also unanimously reiterated the name of Justice K.M. Joseph as judge of the Hon'ble Supreme Court which must hence be notified by the government forthwith. The table below shows the names of the Judges recommended for appointments and whose names have been reiterated, yet the government has not notified their appointments.

This is against the settled law on judicial appointments as laid down in the second judges case, whereby if the Supreme Couft Collegium sends its recommendations to the union government, the government may send the name back for reconsideration by the Collegium. However, if the collegium reiterates its recommendation unanimously, the President is bound to issue the warrant of appointment.

s. Neue or Counr PENDING REcoMMENDED Respouse rnou REITERATION No PERSON WITH ON Govenrmerr RECOMMENDED

1 lustice K.M Supreme Chief 10.01.2018 Rejected, Reiterated Joseph, Chief Court Justice vide Letter unanimously Justice, High of India dated by SC Court of 26.04.20t8 Collegium Uttrakhand on 16.07.2018

2 lustice P&H High GOI 26.03.2018 Made an Reiterated Ramendra Court observation on Jain on on 17.04.2018 Impending Transfer

Reiterated 3 Mr. Krishna Karnataka GOI 23. 08.2016 Appointment on Bhat, PrinciPal High was stalled 06.04.20t7 District & Couft after a complaint Sessions was filed Judge, against him Bangalore before CII Rural TS Thakur Bar & Bench (www.barandbench.com) ? 4 Mr. Basharat Allahabad GOI 4.04.20t6 Centre citing Reiterated Ali Khan High some by collegium Court complaints within days I against him

5 Mr. Allahabad GOI 16.11.2016 Centre citing Reiterated Mohammad High some by collegium Mansoor Court complaints within days against him

6 Mr. Calcutta GOI Early 2016 Sent Back Reiterated Mohammad High on11.11.201 on Nizamuddin Court 6& 15,11.2016 I 0t.03.20t7 &7.04.20t7

APPOINTMENT OF JUSTICE K.M. JOSEPH AS JUDGE OF THIS HON'BLE COURT

5. The name of Justice K.M. Joseph, Chief Justice of the High Couft of Uttrakhand, was recommended for appointment as Judge of the this Hon'ble Court, by the collegium vide resolution dated 10.01.2018. The Collegium resolution states,

"The collegium considers that at present Mr. lustice K.M. Joseph, who hails from Kerala High Court and is currently functioning at Chief Justice of Uttrakhand High Court, is more deseruing and suitabte in all respects than other Chief Justices and senior puisne Judges of High courts for being appointed

as Judges of the .

While recommending the name of Mr. lustice K.M. Joseph, the Cottegium has taken into consideration combined seniority on all-India basis of Chief Justices and senior puisne Judges of High Courts, apaft from their merit and integrity"

(A copy of the Collegium resolution dated 10.01.2018, is annexed as Annexure P 1at (Pages 3o to 3z-

7. The recommendation was kept pending for four months after whichthenameofJusticeK'M.Josephwasrejectedbythe The rejection union government vide letter dated 26th Rpril 2018. placed at number 42 was on the ground that lustice Joseph was Bar & Bench (www.barandbench.com) 7 on the all India High Court Judges' Seniority List with 11 Chief Justices of various High Courts who are senior to him. Further that if appointed the State of Kerala would have two Judges in the Supreme Court and that various other High Courts were not represented in the Hon'ble Supreme Court. The executive thereby referred back the recommendation to the Collegium for reconsideration.

(A copy of the letter from the Union executive to the dated 26.04.20L8, is annexed as Annexure P - 2 at (Page 33 to 3b

7. That on 16.07.2018, the Collegium reiterated its recommendation dated 10. 01.2018, for elevation of Mr. lustice K.M. Joseph, as Judge of the Supreme Court. The Collegium resolution reiterating the appointment stated:

"The Collegium, on due consideration of all the aspects mentioned in the aforesaid two letters, resolves to reiterate the afore-mentioned recommendation, especially since nothing adverse regarding suitability of Mr lustice K.M. Koseph has been pointed out in the aforesaid leffers

(A copy of the Collegium resolution dated 16.07.2018, is annexed as Annexure P - 3 at (Page 3Ia .D)

APPOINTMENT OF THE HIGH COURT JUDGES WHOSE NAMES HAVE BEEN REITERATED BYTHE COLLEGIUM

B. The name of Justice Ramendra lain is a striking case of executive interference and malafide action in completely bypassing the collegium recommendation and the law as laid down by this Hon'ble couft on the judicial appointments. lustice Jain was initially recommended by judge of the Supreme Court Collegium for appointment as permanent The collegium Punjab and Haryana High Couft on 26th March 2018' resolution states: Bar & Bench (www.barandbench.com) q "Taking into consideration the materials on record, including the recommendation of the High Court Collegium, views of our consultee colleagues and the report of the Judgement Eualuation Committee, the Collegium finds Mr Justice Ramendra Jain, Additional Judge, suitable for appointment as Permanent Judge.

In view of the above, the collegium resolves to recommend that Mr. Justice Ramendra Jain, Additional Judge, be appointed as Permanent Judge of the Punjab and Haryana High Court.'

(A copy of the Collegium resolution dated 26.03.2018, is annexed as Annexure P - 4 at (Pase 38-.o 31 I

9.The government sent back the file to the Collegium for reconsideration.

10. On t7.04.2018, the Collegium reiterated the recommendation for appointment of Justice Ramendra lain as Permanent Judge of Punjab and Haryana High Court. The collegium resolution stated:

"The Collegium, on reconsideration, resolves to reiterate its recommendation for appointment of Mr lustice Ramendra Jain as Permanent Judge of Punjab & Haryana High Court, especialty when no specific reason except the issue of his transfer for seeking reconsideration has been recorded in the file

...We do not see any good ground for linking the proposal of transfer of Mr Justice Ramendra lain with the propoal for his appointment as Permanent Judge and even for revisiting, at this cruciat juncture, the above-referred decision dated 2dh the March 2018, for his appointment as Permanent Judge of Punjab and Haryana High Court' Inviewoftheabove,itwouldontybeappropriatethatthe Jain as proposat for appointment of Mr Justice Ramendra High Court is permanent Judge of the Punjab and Haryana Bar & Bench (www.barandbench.com) lo processed most expeditiously keeping in view that the curent term of Mr Justice Ramendra lain is going to expire very shortly on lqh April 2018."

(A copy of the Collegium resolution dated 17.04.2018, is annexed as q Annexure P - 5 at (Page j{9ao Ir

11. Despite this reiteration by the Collegium, the government in blatant disregard for the mandate of the appointment process and the primacy of the opinion of the Collegium once reiterated, appointed Justice Ramendra Jain as Additional Judge of the Punjab & Haryana High Couft on 19.04.2018.

(A copy of the government notification dated 19.04.2018, appointing Justice Ramendra Jain as Additional Judge of the Punjab & Haryana High Court is annexed as Annexure P - 6 (Page $&o \l3 I

12. Mr. Krishna Bhat, Principal District & Sessions Judge, Bangalore Rural, was recommended by the collegium for appointment as Judge of the Karnataka High Couft on 23.08.2016. However his appointment was stalled after a sexual harassment complaint was received by the Chief Justice of India. The then Chief Justice of the , Justice S.K. Mukerjee submitted a report to the Chief Justice of India giving Mr. Bhat a clean chit. Despite this the government withheld his elevation while accepting the recommendations of five others although all the five were juniors to Mr. Krishna Bhat' The appointment was then reiterated by the Supreme Court collegium on 6.04.20t7. The executive then wrote directly to the chief Justice of the Karnataka High Court, Justice Dinesh Maheshwari, who ordered a fresh probe into the complaint against Mr. Krishna Bhat and submitted a repoft clearing him of all allegations'

law ministry or the Centre can 13. It is pertinent to point out that the who is the head of the interact only with the Chief lustice of India with the Chief lustices of the High Collegium and cannot directly deal Bar & Bench (www.barandbench.com) lt Court, who come under the jurisdiction of the Chief Justice of India and the Collegium in matters of judicial appointments. In a scathing condemnation of this move by the centre, Justice Jasti Chelameswar (retired), wrote to the Hon'ble Chief lustice of India on 21* March 2018, recording the impropriety of the executive directly contacting the High Court to reassess a collegium recommendation of the Supreme Court. He stated in his letter that the matter was "ripe for the consideration of the Full Court on the judicial side..."

(A copy of Hon'ble lustice lasti Chelameswar's letter to the Hon'ble Chief Justice of India, dated 21* March 2018 is annexed as Annexure P-7at(Page t+t{ to QB r

14, The names of Mr. Basharat Ali Khan and Mr. Mohammad Mansoor were recommended for appointment as Judges of the by the Supreme Court collegium on 4.4.2016 and 16.11.2016. According to media repofts, the government cited some complaints against them and returned their files for reconsideration by the Supreme Court collegium. The report further states that the complaints were frivolous and so the collegium reiterated their names within days. However their appointments have not yet been notified by the government.

(A copy of the media repoft in The Print dated 31i May 2018, "Appointment of these 4 judges has been struck down for 2 years and Modi Govt. hasn't given reasons"is annexed as Annexure P - 8 (Pase 3!L,o 50 I

15. The name of Mr. Mohammed Nizzamuddin, as per the report in a well known legal news and reporting poftal livelaw.in and as it has Court appeared in theprint'in, was recommended by the Supreme 2016' Livelaw Collegium, as Judge of the Calcutta High Couft in early goes on to report that the name was returned by the Central again recommended the Government on 11.11.2016. The collegium again on 1'03'2017' The name on 15.11.2016 and that was returned Bar & Bench (www.barandbench.com) la Collegium reiterated the name once again on 7.04.20t7 and the name is still pending with the Central government.

(A copy of the livelaw report, "Exclusive: Judges Appointments - A Ping Pong Game? Is indefinite sitting over the files choking the judicial system?" dated 14th March 2018, is annexed as Annexure p - 9 at (Pase -slto 691

APPOINTMENT OF JUDGES TO HIGH COURTS WHOSE COLLEGIUM RECOMMENDATIONS THE GOVERNMENT HAS NOT RESPONDED TO DESPITE THE PASSING OF SIX WEEKS

16. As has been stated in various media reports, the government has been sitting indefinitely over the appointments of various judges to the High Courts by not responding to the recommendation of the Collegium for several months, This is despite the fact that the second judges'case (supra) has held that within the period of six weeks from receipt of the recommendation, the government must convey its opinion to the Chief Justice of India. It has been reported in livelaw.in, this Indefinite sitting over the files sent by the collegium has been choking the judicial system. Despite the large number of judicial vacancies and the huge pendency of cases in the various High Coufts, the government is arbitrarily delaying the appointment process, The livelaw report states that "a staggeringly high number of more than 143 names are pending for judicial appointments. Most of such names are pending at the government level, after clearance by the Supreme Court Collegium."(The livelaw repoft has been annexed as Annexure

P-e) I

Constitutional provisions and settled law on judicial appointments

17. Appointment of Judges to the Hon'ble supreme Court of India and the Hon,ble High courts is made by the President of India and is Bar & Bench (www.barandbench.com) l3 provided in Articles 124(2) and Article 2L7 of the Constitution of India respectively. The relevant portions of these articles are as under: 124(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Couft and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the Chief Justicq the Chief lustice of India shall always be consulted:...

217. Every Judge of a High Court shallbe appointed by the President by warrant under his hand and seal after consultation with the Chief lustice of India, the Governor of the Statq and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold officq in the case of an additional or acting Judge, as provided in Afticle 224, and in any other case, until he attains the age of sixty two years...

Primacy of the Chief lustice of India and the Collegium in matteri of Judicial appointments to the High Courts and the Supreme Coutt 18, In the second judges' case (supra), a nine judge bench of supreme court held that since the Hon'ble chief Justice of India was best equipped to know and assess the worth of a candidate, therefore, the opinion of chief Justice of India must carry greater weight and must be given primacy in matters of appointment of High court and Supreme Court Judges. It was pointed out that in order to eliminate executive influence in matters of appointment of judges, it was prevail. necessary that the opinion of chief Justice of India should However,thecourtruledthattheprimacyofchiefJusticeoflndia's should be opinion was collective and not singular i'e' his opinion Bar & Bench (www.barandbench.com) IrI formed collectively after taking into account the views of senior most Supreme Court Judges.

19. The 1993 second judges case therefore gave the executive only a limited function wherein executive can point out its objection to the proposal mooted by the collegium. However, if after due consideration of the objections the same recommendation is reiterated by the Collegium of this Hon'ble Court, the view of the Collegium shall prevail over that that of executive. Thus, the Second Judge's case established beyond doubt that in matters of appointment and transfers, the final authority lies with judiciary and not with the executive thereby substituting the term consultation with concurrence in reality. The Couft held: "210. The procedure in vogue as regards the formal proposal for filling up the vacancy in the Supreme Couft in initiated by the CJI by recommending the name of the person found suitable by him to Minister of Law and Justice who if accepts the recommendations, forward the proposal to the Prime Minister of India who thereupon, if he approves that proposal, advises the President to issue a formal warrant of apPointment."

20. This Hon'ble Court held that the initiation of the proposal for appointments must be made by the Hon'be Chief Justice of India or the Chief lustice of the High Court and failure of any other constitutional functionary to express its opinion within the specified period should be construed to mean deemed agreement of the of India. functionary with the recommendation of the chief Justice LatelusticeJ.s.Verma,formerChiefJusticeoflndia'whilediscussing theroleofaparticipatoryconstitutionalfunctioninjudicial judicial appointments' primacy is appointments held, that in matter of court held: with the Chief lustice of India' This Hon'ble effect that "454. The majority view in S'P' Gupta to the since it is accountable an executive should have primacy' Bar & Bench (www.barandbench.com) r5 to the people while the judiciary has no such accountability, is an easily exploded myth, a bubble which punishes on a mere touch. Accountability of the executive to the people in the matter of appointments of superior Judges has been assumed, and it does not have any real basis. There is no occasion to discuss the merits of any individual appointment in the legislature on account of the restriction imposed by Articles 121 and 211 of the Constitutlon. Experience has shown that it also does not form a part of the manifesto of any political party, and is not a matter which is, or can be, debated during the election campaign. There is thus no manner in which the assumed accountability of the executive in the matter of appointment of an individual judge can be raised, or has been raised at any time. On the other hand, in actual practice, the Chief Justice of India and the Chief Justice of the High Court, being responsible for the functioning of the coufts, have to face the consequence of any unsuitable appointment which gives rise to criticism levelled by the ever vigilant Bar. That controversy is raised primarily in the courts. Similarly, the Judges of the Supreme Coutt and the High Coutts, whose participation is involved with the Chief Justice in the functioning of the courts, and whose opinion is taken into account in the selection process, bear the consequences and become accountable. Thus, in actual practice, the real accountability in the matter of appointments of superior Judges is of the Chief lustice of India and the Chief Justices of the High Coufts, and not of the the executive which has always held out, as it did even at hearing before us that, except for rare instances' the by the executive is guided in the matter of appointments opinion of the Chief Justice of India Bar & Bench (www.barandbench.com) \b 478(5) The opinion of the Chief lustice of India, for the purpose of Articles 124(2) and 217(1), so given has primacy in the matter of a// appointments; and no appointment can be made by the President under these provisions to the Supreme Court and the High Courts, unless it is in conformity with the final opinion of the Chief lustice of India, formed in the manner indicated." (Emphasis added) Plurality of opinion of the Chief Justice of India

21. The court further observed that the opinion of the Chief Justice of India has to be formed taking into account the views of the two senior most judges of the Supreme Court which was then increased to the four senior most judges in SPECIAL REFERENCE NO. 1 OF 1998, RE (1998) 7 SCC739 (third judges'case). In the second judges case the court held:

'478. This opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In matters relating to appointments in the Supreme Court, the opinion given by the Chief lustice of India in the consultative process has to be formed taking into account the views of the two seniormost judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the views of the seniormost Judge of the Supreme Couft whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court, or otherwise. Article t24(2) is an indication that asceftainment of the views of some other Judges of the Supreme Coutt is requisite' The object underlying Article 124(2) is achieved in this manner as the Chief lustice of India consults them for the formation of his opinion' This provision in Article Bar & Bench (www.barandbench.com)

124(2) is the basis for the existing convention which IT requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief lustice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary. In matters relating to appointments in the High Courts, the Chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of one or more senior Judges of that High Court whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Coutt would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India, The opinion of the Chief lustice of the High Couft must be formed after ascertaining the views of at least the two seniormost Judges of the High Coult."

Delay in aPPointment Process 22.Thesecondjudges'caseemphasesthatunduedelayinmattersof is adhered to appointments can be prevented if a time bound schedule the initiation in the process of appointment. The court held that upon ofprocessbytheChiefJusticeoflndiaortheChiefJusticeofaHigh express their Court, the other constitutional functionaries should deemed that they agree opinion in the specified time or it should be pointed out that the with the recommendation so made' It also Hon'bleChieflusticeoflndiashouldwithoutdelayrequesttheHon'ble Bar & Bench (www.barandbench.com)

1g President to make the appointment after all the functionaries have given their opinion. The court prescribed six weeks as the time within which the opinion of the various constitutional functionaries involved in the appointment process must be conveyed to the Chief Justice of India. It also held that the Chief Justice of India would send his final opinion to the President within 4 weeks for the appointment to be made by the President. The couft further held that the whole process must be initiated at least one month prior to the date of the anticipated vacancy. The couft held: "478 (12) Adherence to a time bound schedule would prevent any undue delay and avoid dilatory methods in the appointment process. On initiation of the proposal by the Chief Justice of India or the Chief lustice of the High Court, as the case may be, failure of any other constitutional functionary to express its opinion within the specified period should be construed to mean the deemed agreement of that functionary with the recommendation, and the President is expected to make the appointment in accordance with the final opinion of the Chief lustice of India. In such a situation, after expiry of the specified time within which all the constitutional functionaries are to give their opinion, the Chief Justice of India is expeded to request the President to make the appointment without any fufther delay, the process of consultation being complete.

475 (13) On initiation of the proposal by the Chief Justice of India or the Chief lustice of the High Court, as the case may be copies thereof should be sent simultaneously to all the other constitutional functionaries involved. Within the period of six weeks from receipt of the same, the other functionaries must convey their opinion to the Chief Justice of India. In case any such fundionary within disagrees, it shoutd convey its disagreement change that period to the others' The others, if they period of their earlier opinion, must, within a fufther of India' six weeks, so convey it to the Chief lustice form his final The Chief Justice of India woutd then within four opinion and convey it to the President weeks,forfinalactiontobetaken'Itisappropriate Bar & Bench (www.barandbench.com)

that a memorandum of procedure be issued ,, )? Government of India to this effect, after consulting the Chief lustice of India, and with the modifications, if any suggested by the Chief Justice of India to effectuate the purpose. 478(14)The process of appointment must be initiated well in time to ensure its completion at least one month prior to the date of an anticipated vacancy; and the appointment should be duly announced soon thereafter, to avoid any speculation or uncertainty. This schedule should be followed strictly and invariably in the appointment of the Chief lustices of the High Courts and the Chief lustice of India, to avoid the institution being rendered headless for any significant period. In the case of appointment of the Chief lustice of a High Court to the Supreme Coufi the appointment of the successor Chief Justice in that High court should be made ordinarily within one month of the uacancy."

Undue delay by a Constitutional functionary is justiciable

23. On Justiciability, this Hon'ble court held, while primacy of the judiciary and plurality of opinion of the Chief lustice of India with effective consultation in writing is a sufficient check on arbitrariness, yet, failure of a constitutional functionary in performing its duty and delaying the appointment process must be justiciable. '483. Article 216 deals with Constitution of High Coufts. It provides that very High Court shall consist of a Chief Justice and 'such other judges as the President may from time to time deem it necessary to appoint.' To enable proper exercise of this function of appointment of 'other Judges', it is necessary to make a periodical review of the Judge strength of every High Couft with reference to the felt need for disposal of cases, taking into account the backlog and expected future filing' This is essential to ensure speedy disposal of cases' to 'secure that the operation of the legal system promotes justice' directive principle 'fundamental in the governance of the country' which' it is the duty of the State to observe in all its action; and to Bar & Bench (www.barandbench.com)

ED make meaningful the guarantee of fundamental rights in Part III of the Constitution. Accordingly the failure to perform this obligation, resulting in negation of the rule of law by the law' delay must be justiciable, to compel performance of that duty." (Emphasis added)

Reiteration by the Collegium of this Hon'ble Couft

24. The law as laid down by the second judges case unequivocally states that once a recommendation has been reiterated unanimously by the Collegium, that appointment ought to be made and the executive cannot undermine the process by not responding to the reiteration by the Collegium. This Hon'ble Court stated:

47 B(7 ) Non-a ppoi ntment of a nyone recom mended, on the ground of unsuitability must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. If the Chlef Justice of India does not find it necessary to withdraw his recommendation even thereafter, but the other Judges of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person for reasons to be recorded, may be permissible in the public interest. If the non- appointment in a rare case/ on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment. However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made. (Emphasis added) 25. lustice Pandian in his concurring opinion further clarified:

212 The next key issue involving grave and far reaching doubts is whether the President is bound by the opinion Bar & Bench (www.barandbench.com)

D.t of the CJI under all circumstances in view of the primacy to be attached to the opinion of the CII and whether the president has or has not the right of vetoing the opinlon of the CJI for weightly reasons to be recorded and communicated to the CJL Since this issue has been well considered and answered by my learned brother, J.S. Verma, J with whose opinion, I concur, I feel that it is not necessary to launch any more discussion on this point except saying that when the CJI disapproves the proposal after the application of his mind on due consideration of all the materials placed before him with which the other consultees of the Supreme Couft also agree, that opinion of the AI deserues acceptance at the hands of the President of India. If for any other potent reasons, the President forwards all materials available with him which influenced his mind to take a contrary view requesting the CJI to reconsider his opinion and the CJI expresses the same opinion of disapproval, after consulting his colleagues, then the opinion of the CJI should prevail and that candidate is not appointed. In any exceptional case, for weighty and cogent reasons indicating that the recommendee is not suitable for appointment, that appointment recommended by the CJI may not be made. Howeve4 if the stated reasons are not acceptable to the CII and the other Judges who have been consulted in the matte, and the recommendation by the CII is reiterated, the appointment shall be made' (Emphasis added)

26. That fufther in supreme court Advocates on Record Association v UOI (2015) 5 SCC 1 in dealing with independence of the judiciary and the limited role of the political executive, Kehar l. asserts the importance of judicial PrimacY 165. The consideration recorded hereinabove, endorses the view, that the political-executive, as far as possible' shouldnothavearoleintheultimate/finalselection and appointment of Judges to the higher judiciary' Speciaily keeping in mind the enormity of the participation of [ne political-executive, in actions of and feelings of pay -backtoth-epolitical-executive,wouldbedisastroustoiuAiciat adjudication. Reciprocity,

"independence of the judiciary"' In this' we are only reiterating the position adopted by Dr' B'R' Ambedkar' Bar & Bench (www.barandbench.com) aL He feared, that with the participation of the political- executive, the selection of Judges, would be impacted by "political pressure" and "political considerations". His view, finds support from established behavioural patterns expressed by Psychologists. It is in this backgrounQ that it needs to be ensureQ that the political-executive dispensation has the least nexus, with the process of finalhation of appointments of Judges to the higher judiciary.

(emphasis added) 27.Thus executive interference and in this case non performance of its mandate in the judicial appointment process, has led to a virtual stalemate in the process of appointments to the Honble Supreme

Court of India and various High Courts. This trend has resulted in a serious negation of the rule of law and the independence of the judiciary, The petitioner thus prays for a direction from this Hon'ble Couft to the government, to notiff the appointments to the High Courts and this Hon'ble Court, which have already been reiterated by the collegium, as well as the appointments of those names, which have been lying before the government without any response for more than 6 weeks since recommendations were received from the Collegium.

LARGE VACANCIES IN JUDICIARY AND PENDENCY OF CASES 28. That given the above settled law on appointments, it is important to mention the high vacancies in the various High courts across the country and the staggering pendency of cases in the High coufts and the Hon,ble supreme couft. According to the official figures on the websiteoftheMinistryofLawandJustice,datedl.0T'2018,the strengthofJudgesacrossHighCouftsis668asagainstthesanctioned Supreme strength of 1079 judges with 411 vacancies' The Hon'ble judges the sanctioned Court is functioning with a strength 23 against context the strength of 31 judges with B vacancies' In this for oblique and stonewalling of judicial appointments by the executive due process of law vested interests, amounts to interference tn the judiciary' and the independence and integrity of the Bar & Bench (www.barandbench.com) u9 (A copy of the statement showing approved strength, working strength and vacancies of Judges in the Supreme Court and in the High Courts as on 1,07.2018 as available on the website of the Hon'ble Supreme Court is annexed as Annexure P -10 (Page 6-( ,o

29. The pendency of matters in the Supreme Couft of India as of 4.05.2018 is 54,013 cases as per information available on the Supreme Couft website. The pendenry of cases in the High Courts is 4349866 as on 11.07.2018, as per information available on the National Judicial Data Gdd. With the increasing pendency of cases, the workload on the sitting Judges of the High Courts and the Hon'ble Supreme Court has increased. Pendency of cases leads to dissatisfied litigants and is a huge factor in the denial of access to complete justice to citizens. (A copy of the information on pending cases in the Hon'ble Supreme Court and High Courts is annexed as Annexure P - 11 (page 66 to 6? ) 29. That the petitioner has not filed any other petition seeking the same relief in any other coutt.

GROUNDS

A. Because the government cannot frustrate the appointment process in an oblique way by sitting on the collegium's recommendations and not responding to the names that the collegium has reiterated. The the second judges, case (supra) has settled the law with respect to judicial appointment process by providing that the executive must been reiterated' notify an appointment where a recommendation has results in a The court held that failure to performs this obligation negationoftheruleoflawandtheconstitutionalfunctionarymustbe Hon'ble Couft also held: compelled to perform its duty' This of the reasons 478(7)..'However; if after due consideration that recommendation is disctosed to the'chief lustice of India, India with the unanimous reiterated by the Chief lustice of Supreme Court consulted in agreement of thre Judges of the Bar & Bench (www.barandbench.com) aq the maffe7 with reasons for not withdrawing thb recommendation, then that appointment as a matter of healthy convention ought to be made.

B. Because in accordance with the settled law, the government must respond to the Collegium's recommendations for Judicial appointments within a reasonable time and not later than six weeks after the recommendation is received by the government from the Collegium in the first instance. Once the recommendation has been reiterated by the Collegium the government has no other option but to forward the recommendation to the President to issue a warrant of appointment. Important Constitutional positions cannot be left vacant merely because of the inaction of the government and its politically motivated interference in the judicial appointment process. Adherence to a time bound schedule would prevent any undue delay and avoid dilatory methods in the appointment process, as held in the second judges case (supra).

C. Because the governments inaction in notifying the recommendations for appointments that have been reiterated by the Hon'ble Supreme Court Collegium is arbitrary and infringes on the independence of the judiciary and thus, violates Article L4 and 2l of the Constitution. Independence of the judiciary ensures that democratic principles remain intact. In discharging a participatory constitutional function in making judicial appointments, inaction of the government in notiflTing the appointments for oblique and motivated the judiciary is reasons, frustrates the entire process' Independence of of the a sine qua non for its efficient functioning' Supremacy independent judicial Constitution is protected by the authority of an body to act as the interpreter of the Constitution'

the Supreme Court and High D. Because appointment of Judges to Hon'ble Supreme Court through its Courts has been entrusted to the judges and is a vital aspect of judicial Collegium of 5 senior most Bar & Bench (www.barandbench.com) e< independence. An independent and transparent system of judicial appointments that is free from political and paftisan considerations has an impoftant bearing on the independence and impaftiality of the judges. As held in the second judges case (1993) 421.These questions have to be considered in the context of the independence of the judiciary as a part of the basic structure of the Constitution, to secure the 'rule of law', essential for the preservation of the democratic system. The broad scheme of separation of powers adopted in the Constitution, together with the directive principle of 'separation of judiciary from executive' even at the lowest strata, provides some insight to the true meaning of the relevant provisions in the Constitution relating to the composition of the judiciary. The construction of these provisions must accord with these fundamental concepts in the constitutional scheme to preserue the vitality and promote the growth essential for retaining the Constitution as a vibrant organism. 424.Pathak, J. (as he then was) in S.P. Gupta[1981 Supp SCC 87 : (1982) 2 SCR 3651 under the topic 'The Rule of Law and the administration of justice', stated thus: (SCC P.705, ParasBT4-75) "... While the administration of justice draws its legal sanction from the Constitution, its credibility rests in the faith of the people. Indispensable to that faith is the independence of the judiciarv. An independent and impartial judiciary supplies the reason for the judicial institution; it also gives character and content to the constitutional milieu. ...In the fashioning of the provisions relating to the judiciary the greatest impoftance was attached to securing the independence of the Judges, and throughout the Constituent Assembly Debates the most vigorous emphasis was laid on that principle the that Framers of the Constitution took great pains to ensure judicial was an even better and more effective structure Bar & Bench (www.barandbench.com) eb incorporated in the Constitution, one which would meet the highest expectations of judicial independence." (emphasis supplied) (SCR pp. 1155-56)

E. Because in the second judges' case (supra), this Hon'ble Court while laying down the foundation of the collegium system in appointment of judges held that primacy in the matters of judicial appointments to the Higher courts, will be with the opinion of the Chief Justice of India and the collegium of judges. The court pointed out that in order to eliminate executive influence in matters of appointment of judges, it was necessary that the opinion of the Chief Justice of India made in consultation with the Collegium, should prevail. The court held: 478(5) The opinion of the Chief Justice of India, for the purpose of Articles L24(2) and 277(l), so given has primacy in the matter of all appointments; and no appointment can be made by the President under these provisions to the Supreme Couft and the High Coufts, unless it is in conformity with the final opinion of the Chief Justice of India, formed in the manner indicated.

F. Because access to justice has been held as fundamental right guaranteed to citizens by Article 14 and 21 of the Constitution of India as held by numerous judgement of the Hon'ble Supreme Coutt. This Hon'ble Court in Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509, held:

31....We have, therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution. We need only add that access to justice may as wetl be the facet of the right guaranteed under Article 14 of the Constitution, which guarantees equality before law and equal protection of law to not only citizens but non-citizens also. Bar & Bench (www.barandbench.com) ak The judgement goes on to state a speedy adjudication process as an essential facet of what constitutes access to justice. With the mounting pendency of cases in the High Court and this Honlble Court, the government inaction in notifying judicial appointments within a time bound period amounts to complete negation of the rule of law and a denial of citizens right to speedy justice. Appointments that are being stalled by the government and not being notified in a timely manner, adversely affect the functioning of the courts and the fair and efficient dispensation of justice. Delays in notiflTing the appointments frustrates the letter and spirit of the process as laid down in the second judges case. One of the key reforms to enable a better functioning and reduced pendency of cases in the Supreme Court is the filling up of vacancies within a stipulated time period. A court that functions at its sanctioned strength will be a more efficient arbiter and protector of peoples rights and the rule of law.

G. Because it is absolutely essential to ensure that the public trust in the Institution of Judiciary is not eroded. Timely judicial appointments that ensure the smooth functioning of the courts are essential to maintain public confidence in the judiciary. Government cannot be allowed to silently veto the established process for judicial appointments.

PRAYERS

In view of the facts & circumstances stated above, it is most respectfully prayed that this Hon'ble Couft may in public interest be pleased to: - a) Issue a writ of mandamus or any other appropriate writ or direction to the Union of India to notifo forthwith, in keeping with the law laid down in the second judges case (supra), the appointment of the judges of different High Courts and this Hon'ble Coutt, whose names Bar & Bench (www.barandbench.com) le have already been unanimously reiterated by the collegium of the Hon'ble Supreme Court but the same are still pending before the Government;

b) Issue an appropriate writ or direction to the Union of India, to notify forthwith those recommendations for appointments of judges to various High Court that have been sent by the collegium to the government and to which the government has not responded even though 6 weeks have passed since the recommendations were received by the Government; c) pass such other order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

Prrmorurn TnRouGH:

(Pmsxam Bxusxlt't) Courusrl FoR THE PrrmorurR

Srrrlro ev: MR. Dusnvnrur Davr, Sn. Aov. DRewrv Bv: Cnent D'souzA DRAWN & Fruo Oru: 18'n Jut-v, 2018 New Drnr