Centre to push judge's appointments
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- The Union government offered to decide in three months the Supreme Court Collegium recommendations for appointment of judges in the High Courts pending with it for over half a year.
- Chief Justice shot back saying it would be helpful if the government shared its own timeline at each stage of the appointment process.
- The High Courts continued to have 220 vacancies because their collegiums had not forwarded any names. Those collegiums should be put on a clock to forward their recommendations.
- There are two timelines. One for the government and another for the HCs.
- The Chief Justice says he will deal with the High Court timelines.
- The Memorandum of Procedure guided the government and the judiciary through the appointment process.
- The procedure did not insist on a deadline but only loosely says the process should be completed within a reasonable time.
- On March 23, the Bench had asked the government to come clear on the status of 55 recommendations made by the collegium for judicial appointments to various High Courts six months to nearly a year-and-a-half ago.
- Forty-four of the pending recommendations were made to fill up vacancies in Calcutta, Madhya Pradesh, Gauhati, Rajasthan and Punjab High Courts.
- Every one of these recommendations had been pending with the government for over seven months to a year.
- Recommendations of names made by the collegium to the Delhi High Court had been pending for seven months.
Vacancies in High Courts
- Recently, the Supreme Court has asked the government to clarify on the status of 55 recommendations made by the Collegium for judicial appointments to various High Courts six months to nearly a year-and-a-half ago.
- The total sanctioned judicial strength in the 25 High Courts is 1,080.
- However, the present working strength is 661 with 419 vacancies as on March 1.
- The Supreme Court has been repeatedly conveying to the government its growing alarm at the judicial vacancies in High Courts.
- Some of these High Courts are functioning only with half their sanctioned judicial strength.
- On average, the courts suffered at least 40% judicial vacancies.
- The Collegium of judges is the Indian Supreme Court‟s invention.
- It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made
- subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
The Judges Cases
- The First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI‟s opinion, albeit carrying great weight, should have primacy.
- The Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI‟s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
Loopholes in the Collegium system
- Many have faulted the system, not only for its being seen as something unforeseen by the Constitution makers but also for the way it functions.
- Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- The attempt made to replace it by a „National Judicial Appointments Commission‟ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
- Embroilment in public controversies and having relatives practising in the same High Court could be common reasons for transfers.
Supreme Court judgment
● Deadline - The court has fixed 6 months to appoint at least those whose names the Supreme Court collegium, the High Courts and the Government have agreed upon.
● The Supreme Court‟s recommendation now of a time limit to these appointments is welcome.
● Post NJAC - The equation between the court and the Union Government has been strained by the former's decision to strike down the move to set up a National Judicial Appointments
- NJAC - It would have been responsible for appointments and transfers to the higher judiciary in place of the Supreme Court collegium.
- Procedural lapses - reports of delays in appointments have become increasingly commonplace, with both sides testy over the procedure.
- Binding - If the collegium reiterates the names, the court said that the government has no option but to appoint the judges.
Scope for transparency
- In respect of appointments, there has been an acknowledgement that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority opinions admitted the need for transparency, now the Collegium resolutions are now posted online, but reasons are not given.
SOURCE: THE HINDU