Executive-judiciary tussle hit judges’ appointments
NEW DELHI: The inability of the executive and the top judiciary to reconcile their differences over a new mechanism for the selection of judges has led to a slowdown in appointments to the Supreme Court and high courts across the country, law ministry officials said on Monday.
Appointments to the SC and HCS fell from 126 in 2016 to 115 in 2017 – with only 12 new judges appointed to the high courts in the last three months of the year. As many as nine high courts are now being run by acting chief justices, and the SC is functioning with 25 judges, six short of the sanctioned strength of 31.
Officials in the law ministry confirmed that the drop was because the executive and the judiciary had been unrelenting on two contentious clauses in the draft Memorandum of Procedure (MOP) that will modify the process of the selection of judges.
A source privy to exchanges said that the government wants to have the power to reject a candidate’s name on the grounds of national security and wants a secretariat set up to examine complaints against judges, but the higher judiciary is not agreeable to these conditions.
The shortfall could worsen in 2018, with seven more SC judges, including Chief Justice of India (CJI) Dipak Misra, set to retire this year. The earliest retirement – that of Justice Amitava Roy – will be on March 1. “We haven’t received the recommendations from the SC collegium either for chief justices of the high courts or the vacancies in the Supreme Court,” a ministry official confirmed on Monday. According to the existing procedure, the process for appointing a judge should be started six months before a vacancy arises.
The high courts, too, continue to function well below their sanctioned strength of 1,079, with 395 vacancies as of December 31. “For many vacancies, we have not received the recommendations from the HC collegiums. The other appointments are in the pipeline,” minister of state for law and justice PP Chaudhary told Hindustan Times.
The CJI was not immediately available for comments.
Top court judges are selected by the SC collegium – a body of India’s five top judges headed by the CJI — after background checks from the law ministry and a nod from the PMO.
For HC judges, the high courts have their own collegiums to shortlist candidates before the SC collegium takes a final call.
In 2014, Parliament had passed the NJAC Act, which sought to end the practice of judges appointing judges through collegiums, but the SC struck it down as “unconstitutional” on October 16, 2015. Later that year, the same bench, headed by Justice JS Khehar, ruled in favour of formulating a new MOP for greater transparency. It asked the government to finalise the procedure “in consultation with the CJI”.
While Chaudhary said the two sides were close to “finding common ground”, he added that the government was only going by what the SC ruled in 2015. “We are hopeful that the collegium will follow the judgment in letter and spirit,” Chaudhary said.