PMO has to inform IB, which has to inform us: Supreme Court on non-appointment of tribunal members

The Supreme Court today made it clear that the Prime Minister's Office (PMO) cannot take a final call on rejecting names recommended for appointment to tribunals without the Intelligence Bureau (IB) report being placed before the apex court judge heading the Search cum Selection Committee (SSC)..The Bench of Justices DY Chandrachud and PS Narasimha ordered,"SSC comprises of a judge of this Court and even two Secretaries of the Government of India. All inputs available with government must be placed with SSC in advance. If some facts come to light after recommendation in exceptional circumstances, that too must be placed before SCSC.".The Court was hearing a contempt petition filed against the Secretary, Department of Legal Affairs and other officers of the Central government for delay in appointments to the Income Tax Appellate Tribunal (ITAT).During the course of the hearing, the Court noted that out of the total 41 names recommended by the SSC headed by the Supreme Court's Justice AM Khanwilkar, only 22 were approved by the Appointments Committee of the Cabinet ACC, and the remaining 19 names were awaiting appointment. It also highlighted that reliance was placed on intelligence reports against certain candidates that were not brought before the SSC..Appearing for the Centre, Attorney General KK Venugopal told the Bench that the Law Secretary had no role to play in the appointment of ITAT members. He further informed the Court that the ACC had approved 22 names for appointment to the ITAT.At this point, the Bench said that the SSC had recommended 28 names in the main list and 13 names in the wait list."But you took 22 and 6 from wait list. Why did you not take from main list?"AG Venugopal responded,"We have said [IB] enquiries should be restricted to the shortlisted list and should not be done after the recommendations of selected candidates but should be done as soon as shortlist is done.""Now IB clearance is there even before shortlisting," the Bench replied..The Bench pointed out that once the IB has given its approval, it is final as far as the integrity of the candidate is concerned. However, in this case, it was noted,"You have said you rejected a candidate due to multi-source information. But who are these sources? IB is a government authority."At this point, the AG revealed that the enquiries were conducted by the PMO. Justice Chandrachud then said,"I was in Allahabad High Court for 3 years. The nature of feedback will depend on who is asked. I am part of the Supreme Court Collegium now and I am telling you it depends on who you ask. Here in this case, PMO has to inform IB, IB has to inform us."The judge added,"IB must make the enquiry. I chair a selection panel and once IB tells us there is a problem, we are extremely careful and exclude them. Thereafter, anything that happens, you must place it before IB and intimate the Supreme Court judge also. Otherwise, the judge feels why they are doing it...".The Court also called for institutionalising this procedure. It proposed that after the SSC has made a recommendation and some further material has come to light when it is before the ACC, this material has to be brought before the Chairman of the SSC, who is a Supreme Court judge. The AG replied,"The pendency is continuously going down. Now is it necessary to continue the same thing. But yes, let this be referred to the IB and placed before the High Powered Committee headed by CJI. That Committee only looks at ITAT President appointment.".Senior Advocate R Basant, appearing for the petitioner, then said,"The PMO recommending is an unworthy attempt to delay the appointment. They say work has reduced. There were 92,000 cases pending and now there are over 50,000 cases pending. This is happening because of vivad to vishwas scheme where appeals have been withdrawn."He pointed out that many ITAT benches were not functioning because there are no members, a fact denied by the AG.Senior Advocate Arvind Datar then weighed in, saying,"The list finalised by the Supreme Court judge cannot be revisited like this. Section 270A under the Income Tax Act is dangerous provision since any difference is marked as penalty and these are mostly set aside in appeal due to technical errors...how can number 2 (from main list) be ignored and people from waitlist be selected?".On the contempt plea itself, AG Venugopal argued,"Before issuing contempt, notice must be issued why contempt should not be issued. Here, Cabinet Secretary was arrayed, which sent jitters down in government. Now Revenue Secretary and Finance Secretary were parties. This is unfair to keep sword hanging on their head. Here it was only the Law Secretary. The name of Cabinet Secretary was just thrown in to add some weight and put government on the backfoot.".To say that the government is immoral and doing something wholly unjustified is clearly unfair!Attorney General KK Venugopal.The Court proceeded to dictate its order, which stated,"The Union Government shall practice the exercise of placing the material before the SSC in the tabulated form within a period of one week. We would request that a meeting of SCSC may be conducted after this."The matter will be listed after the summer vacation..It was highlighted that against the name of each candidate recommended for appointment to the ITAT, there is a column for the IB report and another column titled 'feedback'. On this aspect, the Court said,"There is no info as to how feedback is formulated or process followed. In many cases, we find feedback is diametrically different than IB report."As part of the appointment process, the IB report is placed before the SSC before the selection takes places and candidates recommended by SCSC are cleared by the IB after detailed analysis of their credentials and integrity.The Court noted that many comments in the feedback column are subjective, and would substantially detract from the tenets of the process. "We agree that all inputs regarding a candidate by the Union of India should be placed before the SSC," it said in its order.