Can Central government be held in Contempt for putting off Judge’s appointment?
What is the law in regard to Contempt in India?
-by : Editor, Juristic Lens
BACKDROP of the ISSUE
A petition alleging contempt has been brought by the State government of Jharkhand, which accuses the Union government of putting off the appointment of the Chief Justice of the Jharkhand High Court, by delaying clearance to the transfer of High Court of Himachal Pradesh’s Chief Justice M.S. Ramachandra Rao to the Jharkhand High Court.
The matter came into light while hearing a PIL seeking the government to implement Collegium’s recommendations in a timebound manner. During the hearing, CJI D.Y. Chandrachud asked Attorney General R. Venkataramani about the petition by Jharkhand government, who claimed to be unaware of the matter. The Union government is yet to take action on the recommendations provided by the Supreme Court Collegium in July and in response to the Collegium’s repeated requests for Central government’s clearance on judicial appointments, the Supreme Court has sought a detailed report on the matter.
The Collegium
Originating from a sequence of Judges’ Transfer cases, the Collegium system governs the selection and transfer of Justices for the Supreme Court and High Courts in India. According to the Memorandum of Procedure (MoP), the government can ask for clarifications or raise concerns on the recommendations made by Collegium for appointment of Judge to Supreme court or High Court, but if the Collegium recommendation is reiterated, the government must give its nod to the appointment. Hence, the situation becomes almost similar to the incidence of ‘Pocket veto’ with the Indian President with regard to bills passed in Parliament. The Supreme Court has often shown its displeasure with the Central Government’s failure to take action with regard to numerous collegium recommendations.
Can delay in Judge’s appointment be ‘Contempt’?
Anything that disrespects a court’s honor and diminishes its prestige may be considered contemptuous. The law regarding contempt in India is governed by The Contempt of Court Act, 1971 which doesn’t define the term ‘contempt’, rather only classifies it into Civil and Criminal contempt. Whereas, the Supreme Court and Hight Courts possess inherent powers to punish for their contempt by virtue of Article 129 and Article 215 of the Indian Constitution.
To be held in civil contempt, one must do more than just disobey a court order. The emphasis being on ‘wilful’, ‘deliberate’ or ‘intentional’ disobedience of the order. It is often alleged that if the recommendations of collegium headed by the Chief Justice of India himself are not implemented, even after repeated requests, it should be considered as ‘willful disobedience’ of the orders of the Apex court. But the more important question is – Does the decision of Supreme Court collegium qualify as a ‘court order’?
Article 141, reinforces the supremacy of Supreme court by stating that law declared by the Supreme Court is binding on all courts, and authorities within India and the Collegium system owes its existence to one such ‘law’. In this regard, the appointment recommendations made by Collegium become an extension of Supreme Court’s judgements and eligible to qualify as court order.
Since long, controversy has persisted between the executive and the judiciary over the collegium system and this delay in appointment seems to be an appendage to the same tug-of-war. The collegium system in its current form has several concerns, for instance its inability to ensure transparency in judge’s appointments or the issue of alleged nepotism, but such delay in appointment of judges whether ‘intentional’ or ‘unintentional’ is impacting the efficiency of Indian judicial system.
