Under new photophobic collegium, government makes hay on appointment and transfer of judges

THE Union government has continued with its practice of notifying some names for judgeship while withholding other names disregarding the recommendations made by the Supreme Court Collegium.

In the latest turn of events, on Monday, the Union government cleared the appointment of two advocates, Ajay Digpaul and Harish Vaidyanathan Shankar, as judges of the Delhi High Court.

For reasons not available in the public domain, the government has withheld the appointment of advocate Shwetasree Majumder, whose name was also recommended for appointment by the collegium on August 21, 2024.

It is also not clear whether the government has returned the name of Majumder to the collegium for reconsideration or it has simply exercised a pocket veto.

As per the judgment in the Second Judges case of 1993, under which the collegium system was formed, the government is entitled to seek reconsideration of the recommendation made by the collegium but if the name is reiterated by the collegium, the government is obligated to notify the same.

However, the practice has been somewhat different as the incumbent government has been sitting over names for years altogether with no movement on the files.

In its recommendation, the collegium stated that Majumder had an extensive practice of more than 21 years and vast experience in civil matters, particularly intellectual property rights, technology, advertising and trade secret matters. Her elevation would be a valuable addition to the Bench of the High Court of Delhi and would promote diversity and inclusivity on the Bench, the collegium felt.

“The expertise of the candidate in the area of intellectual property rights is of significant importance in view of the pendency of such matters in the high court which are being dealt with by a dedicated IP [intellectual property] division,” the collegium said of Majumder, adding that she had a substantial practice which is reflected in 35 reported judgments delivered in the cases in which she appeared or argued and her average net professional income was ₹183.56 lakh per annum during the last five years.

The government has also not notified the appointment of advocate Tejas Dhirenbhai Karia as judge of the Delhi High Court. The collegium recommended Karia on August 29, 2024. It is also not clear whether the government has returned the name of Majumder to the collegium for reconsideration or it has simply exercised a pocket veto.

On Karia, the collegium had stated that he is a domain expert in the law of arbitration. The volume of cases on arbitration law requires specialised handling, particularly, in the High Court of Delhi, the collegium felt.

Tejas Dhirenbhai Karia will prove to be a valuable addition to the Bench of the High Court of Delhi, the collegium had noted, adding that his average net professional income during the preceding five years was ₹709.69 lakh per annum. This, the collegium said, was also indicative of the fact that the candidate had a substantial practice.

All four names were recommended by a collegium comprising the then Chief Justice of India (CJI) D.Y. Chandrachud and Justice (now the CJI) Sanjiv Khanna and Justice B.R. Gavai.

The High Court Collegium had recommended these names to the Supreme Court Collegium on October 25, 2023.