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Putting the brakes on delay

Setting a timeline for appointment of judges will help fill vacancies faster.

Lokendra Malik | New Delhi |

A few days ago, a three-judge bench of the Supreme Court of India comprising Chief Justice S. A. Bobde, Justice Sanjay Kishan Kaul and Justice Surya Kant laid down a timeline for the Central Government to make judges’ appointments in the High Courts within a prescribed time. This order is likely to avoid the problem of delay in judicial appointments. It will also be a milestone to protect the independence of the judiciary and strengthening the primacy of the Supreme Court collegium headed by the Chief Justice of  India (CJI) to appoint the judges of the High Courts and the Supreme Court in the country.

Before this order, the Central Government had made it almost routine to delay judicial appointments recommended by the Supreme Court collegium. Now, it will be difficult for the Government to continue this practice as the timeline fixed by the Supreme Court becomes the law of the land as per Article 141 of the Constitution, and the Government will be dutybound to follow it as per Article 144 of the Constitution.

After three landmark judgments of the Supreme Court on the issue of judges’ appointments delivered in 1993, 1999, and 2015 respectively, the Supreme Court collegium headed by the Chief Justice of India and consisting of his two senior-most colleagues has the conclusive power to recommend the names of High Court judges in the country. As per this practice, the Central Government is bound to act on the recommendation of the Supreme Court collegium.

The High Court collegium headed by the Chief Justice of the concerned High Court and consisting of the two senior-most judges of the High Court initiates the process to appoint a judge of the High Court and sends its recommendations to the Union Law Minister, concerned State Government, and the Supreme Court collegium for further process. Finally, the recommendations made by the High Court collegium reach the Supreme Court collegium, and if it approves the recommendation of a person to be appointed as a High Court judge, the recommendation is sent to the Central Government to issue the formal warrant of appointment as per the constitutional provisions.

In the Central Government, the Union Law Minister handles these matters and puts up the recommendations of the collegium before the Prime Minister who advises the President of India to sign the formal warrant of appointment. In case of any conflict between the collegium’s recommendation and the Prime Minister’s advice, the President of India acts as per the Supreme Court collegium’s view. So, the Supreme Court collegium is the real judge-maker in the country. In judicial appointments, the Central Government has a limited role. It checks the antecedents of recommended persons and this process takes some time. It collects the necessary inputs about the persons recommended for judicial appointments through the Intelligence Bureau and some other administrative agencies involved in the intelligence collection system in the country. It sends all those inputs/reports to the CJI who presents the same before the collegium for its approval or consideration. Ultimately, it is the CJI led Supreme Court collegium that takes the final decision in the matter. It has full power either to accept or reject the Central government’s view regarding the appointment of a judge in the Supreme Court and the High Courts.

If the Supreme Court collegium reiterates its recommendation, the Central Government will have no option but to appoint him/her as a judge of the High Court. However, as no timeline was prescribed in any judgment of the Supreme Court, the government had some scope to delay the appointment process to complete certain formalities. This lacuna provided an opportunity to the government to delay appointments of some persons who did not fall in line with its ideology or thinking. Since 2014, the government has used this power badly and delayed the appointments of several persons and this has undermined judicial authority and independence. The delay in appointment affects the seniority of the judges in their careers, particularly for their elevation to the Supreme Court.

Admittedly, around 416 vacancies of judges are lying in the different High Courts in the country as of now. Due to this, many High Courts are facing huge arrears of cases. As per the data submitted to the Supreme Court, 45 recommendations for High Court judges’ appointments are pending with the Central Government for more than six months. Surprisingly, six names reiterated by the Supreme Court collegium a second time are also awaiting appointment. In addition to this, 196 recommendations are under process with the Central Government for judges’ appointment to different High Courts in the country. Around 220 recommendations for existing vacancies need to be made by the High Court collegiums soon. The Chief Justices of the respective High Courts need to initiate the process to fill up these vacancies.

In M/S PLR Projects Pvt. Ltd. v. Mahanadi Coalfields Ltd. & Ors, the issue of vacancies of judges in the High Courts came up before the Supreme Court when it was hearing a petition seeking transfer of a case from the High Court of Orissa due to the lawyers’ strike there. In this case, the Court observed that the High Courts are in crisis as there are almost 40 per cent vacancies and many of the larger High Courts are working at under 50 per cent of their sanctioned strength.The Court rejected the contention that laying down a timeline would be contrary to certain observations made in the Third judge case, saying the observations referred to deal with the judicial review of a particular appointment and not such aspects of the appointment process as today.

Finally, the Court gave the following directions to expedite the appointment process of the High Court judges: (1) the Intelligence Bureau should submit its report/inputs within 4-6 weeks from the date of recommendation of the High Court collegium to the Central Government. (2) It would be desirable that the Central Government forward the file(s) recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/input from the IB. (3) It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly if Government has any reservations on the suitability of a person or in the public interest, within the same time it may be sent back to the Supreme Court Collegium with the
specific reasons for reservation recorded. If the Supreme Court Collegium after consideration of the aforesaid inputs still reiterates the recommendation(s) unanimously (Cl. 24.1), such appointment should be processed and appointment should be made within three to four weeks.

The Court also observed that the Chief Justice of India must send the recommendations/advice to the Union Law Minister within four weeks and the latter must put up the proposal to the Prime Minister within three weeks for the advice of the President of India. (Clause 24 and 24.1 of the MOP). The Court has laid down these directions to expedite the appointment process of the High Court judges in the country. It was much required given the state of vacancies and arrears of cases in the High Courts. People need timely justice and both the judiciary as well as the executive should help people to get speedy justice.

Now, these directions must be incorporated by the Central Government in the Memorandum of Procedure dealing with the judges’ appointments. The timeline will also minimize the executive’s interference in judicial appointments. It will also strengthen the primacy of the Supreme Court collegium in judicial appointments. However, the collegium should also bring some more transparency and accountability in its decision-making process.