Cannot bind President to timeline on appointments of judges: Centre
NEW DELHI: Binding the President of India to a timeline in matters of judicial appointments is “not appropriate”, the Centre told Supreme Court on Wednesday, flagging several concerns over engaging the services of retired judges to tackle massive pendency of cases across the high courts of the country.
In a status report submitted to a bench headed by justice Sanjay Kishan Kaul, the central government pointed out that the process of appointing ad hoc judges in high courts, as per Supreme Court’s April 2021 judgment, will require inclusions in the Memorandum of Procedure (MOP) -- the document that guides the appointment of judges to the constitutional courts.
In August 2021, the government said, Union law minister Kiren Rijiju wrote to the Chief Justice of India soliciting the latter’s opinion on the draft guidelines for the appointment of ad hoc judges under Article 224A of the Constitution. But the CJI’S opinion, based on the unanimous view of the Supreme Court collegium, is yet to be received, said the Centre.
However, the draft guidelines, seen by HT, marks some crucial departures from the April 2021 judgment of the top court, potentially setting the stage for yet another confrontation between the executive and the judiciary, which has recently been at loggerheads over the appointment of judges through the collegium system. At several occasions since November, Rijiju has relentlessly reproached the collegium system, calling it “opaque”, “alien to the Constitution” and the only system in the world where judges appoint people who are known to them.
While Rijiju’s comments were tacitly responded to by CJI Dhananjaya Y Chandrachud by making an appeal for “constitutional statesmanship” by the executive and judiciary as he spoke at the Constitution Day function on November 25, justice Kaul disapproved of the law minister’s public stance during a hearing on November 28, stressing that the Centre is bound to “observe the law of the land” and cannot “frustrate the entire system” of making judicial appointments just because it doesn’t like it.after the November 28 hearing, justice Kaul’s bench will again take up the matter relating to the delay by the government in clearing the collegium’s recommendations on Thursday. The affidavit’s reference to the timeline for the President is in the context of the ad hoc appointments; the matter relating to the appointment of ad hoc judges and the draft guidelines mooted by the government will also come up on Thursday.
To begin with, the draft guidelines do away with the requirement of completing the process of appointment of ad hoc judges within three months, as laid down in the April 2021 judgment. The proposed guidelines in fact do not mention any time limit for the government to clear the appointment of ad hoc judges after receiving the final recommendation from the CJI. “In the April 2021 judgment, the Supreme Court has mentioned that a period of about three months should be sufficient to process a recommendation appointment under Article 224A and, thus, ideally a Chief Justice should start the process three months in advance for such appointment. However, Government of India is of the considered view that binding President of India in a timeline is not appropriate,” the Centre said in the report.
Another key departure from the 2021 judgment relates to the trigger or initiating the proposal for appointment of ad hoc judges. The judgment held that recourse to Article 224A would not arise if a high court has not made recommendations for at least 20% of the regular vacancies of judges.
But the draft guidelines by the government states that the high courts must make recommendations for all the existing vacancies of judges and also those that are likely to arise in the next six months before it seeks to engage ad hoc judges. Similarly, the SC, in its 2021 judgment, noted that since the judges are already appointed to the post through a warrant of appointment, the occasion to refer the matter to the Intelligence Bureau (IB) or other agencies should not arise in such a case. The government, however, has told the court that if there is a gap between retirement and re-appointment of that person as an ad hoc judge, it is imperative to verify their integrity through an IB report. “If there is a gap of more than six months between the date of retirement and appointment of a retired judge at the sittings of high court, Union minister of law and justice, would consider the recommendations in the light of such other reports as may be available to the government in respect of the names under consideration including the good health status of the recommendee,” said the draft guidelines.
Article 224A of the Constitution, used rarely, deals with appointment of ad-hoc judges in high courts and says “the chief justice of a high court for any state may at any time, with the previous consent of the President, request any person who has held the office of a judge of that court or of any other high court, to sit and act as a judge of the high court for that state.”