Centre can’t sit over collegium recommendations

By Saurabh Malik

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THE Centre cannot hold the scales of justice and judge the decision of the Judges by sitting over collegium recommendations for long and, at times, overturning it without bringing the reasons for its verdict in the province of a common man's knowledge.

In a democratic setup where the babus time and again wait for a rap by the court before they act, the system of the people, by the people, but not always for the people, refuses to work till it is made functional and frictionless by the judiciary.

People under the circumstances look up to the judiciary not just for dispute resolution, but also for putting in place things that should not have been displaced in the very first instance by the authorities that every so often are not concerned.

The Centre by delaying its decision on the recommendations or returning the names of the nominees may be acting well within its jurisdiction. But the government is also sending across a message that decisions taken by the senior most judges of both high courts and the Supreme Court do not attain finality till finalised by the government. The fact that the government in the process ends up pulling down from the high pedestal what the people have placed there is also beyond the realm of doubt.

The Centre recently cleared just three out of five names recommended by the Supreme Court collegium for elevation as the Judges of the Punjab and Haryana High Court. No reason whatsoever for the government's stand on excluding two advocates from the selection zone found its way into the public domain.

For authorities who have all along been clamoring for even greater transparency in the process of collegium recommendations, hush was the word. The Centre's silence created din and gave rise to speculation of all sorts is a fact no more in the sphere of denial.

Instances of collegium proposing and government disposing galore at the national level. Many a fingers have pressed the computer keys writing about the appointments of Justice Vikram Nath, Justice Irshad Ali and Justice Akil Kureshi.

The fallout that apparently has failed to call attention to itself is the reluctance of sorts that is gradually seeping in among the advocates, who do not apply for elevation to the high courts, but find themselves in the region of consideration after being picked by the collegium.

The stamp of "rejection" embossed against their name by the people in their commonplace communication among themselves in case they do not make it to the Bench has the capacity of leaving a mark that can no way be dubbed pleasant, predominantly when non-selection does not connote denunciation.

A pointer towards delay is offered by two petitions filed before the Supreme Court for time-bound decisions by the Centre on collegium recommendations. In one of the petitions filed in public interest, a non-government organisation submitted that some of the files reiterated by collegium are pending with the Centre; and the names reiterated by the SC collegium must be notified by the Centre within six weeks.

The Centre needs to remember that the procedure for appointing a Judge in the high courts and the Supreme Court is meticulous and multi-level. It involves deliberation at the highest level. For elevation to the high court, it entails detailed discussion by the collegium of three senior-most Judge, including the Chief Justice.

The file reaches the Supreme Court collegium via the state government and the Raj Bhawan. In between, report from the Intelligence Bureau is taken into consideration. The government can send the file back to the collegium for reconsideration. But if the Supreme Court hands it back to the government, it has no option, but to accept it.

How long can the government sit over the matter is the crucial question. Another aspect of the matter is complete opaqueness shrouding the government decision. The government's action of non-action reflects upon independent judiciary's image and that is a fact that travels beyond the area of discussion.

The government is virtually doing what it could not through its struck-down plans for setting up the National Judicial Appointments Commission (NJAC). Comprising the Chief Justice of India, the two senior-most judges of the Supreme Court, the Law Minister and two "eminent persons", it was to make recommendations for appointments of Judges to the Supreme Court and the high courts. It needs to be realised that the NJAC is functional without being in place.

Prosecutor must describe charge against accused

The Punjab and Haryana High Court has made it clear that the importance of Section 226 of the CrPC has been overlooked by the courts below. The provision makes it mandatory for the prosecutor to describe the charge against the accused and elaborate upon the evidence he proposes to prove the guilt of the accused. Referring to the Code of Criminal Procedure, Justice Anil Kshetarpal has added it is apparent that consideration of material, analysis of the contentions raised by counsel for the parties and recording of reasons are mandatory. “It has been seen more often that the orders passed by the courts at the time of framing charge are non-speaking. No doubt, the order of charge is not required to be elaborated or detailed one, however, a short order recorded by the court must reflect application of mind”.