The government expressed "strong reservations" about the
recommended names as it sent back the files to the collegiums on
November 25, sources aware of the procedure to appoint
Supreme Court and high court judges said.
Out of the 20 cases, 11 were fresh cases and nine were
reiterations made by the top court collegiums, they said.
Kirpal's name was recommended by the Supreme Court
collegium, headed by then Chief Justice of India (CJI) N V
Ramana, for elevation as a Delhi high court judge.
Saurabh Kirpal is the son of former CJI B N Kirpal.
Kirpal's name was sent by the Delhi high court collegium to the
SC collegium in October 2017 for elevation as a high court judge.
But the top court collegium is learnt to have deferred deliberations
on his name three times.
He had recently told NDTV that he believed the reason behind the
limbo was his sexual orientation.
Justice Ramana's predecessor, then CJI S A Bobde, had
reportedly asked the government to send more information on
Kirpal. Finally, the collegium headed by Justice Ramana took a
decision in favour of Kirpal in November 2021.
The government has returned all the names related to fresh
appointments in various high courts on which it had "differences"
with the Supreme Court collegium, the sources said.
The Supreme Court on Monday expressed anguish over the delay
by the Centre in clearing the names recommended by the
collegium for appointment as judges in the higher judiciary, saying
it "effectively frustrates" the method of appointment.
A bench of Justices S K Kaul and A S Ojha said a three-judge
bench of the apex court had laid down the timelines within which
the appointment process had to be completed. Those timelines, it
said, have to be adhered to.
Justice Kaul observed that it appeared the government was
unhappy with the fact that the National Judicial Appointments
Commission (NJAC) Act did not pass muster, but that cannot be a
reason to not comply with the law of the land.
The apex court had in its 2015 verdict struck down the NJAC Act
and the Constitution (99th Amendment) Act, 2014, leading to the
revival of the Collegium system of existing judges appointing
judges to constitutional courts.
During the hearing on Monday, the apex court told Attorney
General R Venkataramani the ground reality is that the names
recommended, including those reiterated by the apex court
collegium, are not being cleared by the government.
"How does the system work?" the bench asked, adding, "Our
anguish we have already expressed."
"It appears to me, I would say, unhappiness of the government of
the fact that NJAC does not pass muster," Justice Kaul observed.
Justice Kaul said sometimes laws pass muster and sometimes
they don't.
"That cannot be a reason not to comply with the law of the land,"
he said.
The top court was hearing a plea alleging "wilful disobedience" of
the time frame laid down by the apex court in its April 20 order
last year to facilitate timely appointment.
