On October 16, 2015 , the Supreme Court struck down legislation creating National Judicial Appointments Commission for infringing the judicial independence which is a part of basic structure of the Constitution. In the same year on December 16, the Court asked the government to prepare a fresh Memorandum of Procedure for appointment of judges to the higher judiciary. Since then the Supreme Court has been seeking an explanation from the government for delay in finalising of the MoP. Not only had the government been sluggish in preparing the memorandum of procedure but it has also been stalling appointments as per recommendations made by the judiciary under the collegium system currently being followed. The result of this inaction is that there are 403 vacant position for judges in High Courts all over the country.
These vacancies have overburdened the judiciary so much so that in April 2016, the former Chief Justice of India TS Thakur broke down before Prime Minister while delivering a speech at a joint conference of Chief Ministers and Chief Justices of High Courts. Lamenting the inaction by the executive, the former CJI had then said that cases are piling up and there aren’t enough judges to hear them. Two years on, the condition of Indian judiciary has gotten worse.
The number of vacancies in the higher judiciary are at an all time high. More than 100 names are pending for judicial appointment. Most of such names are pending at the Government level, after clearance by the Supreme Court Collegium. Still, there has been inordinate delay in the new appointments. The government under the Collegium System is bound to accept the recommendations of the judiciary for making appointments of judges to High Courts and Supreme Court. But with no set period within which such recommendations are to be accepted, the present government seems to be taking full advantage of this glaring loophole while sitting on the recommendations.
Last month, the Kerala High Court Bar Association reprimanded the Centre for failing to approve Justice K.M. Joseph’s elevation to the top court and cautioned that this was sending a signal that honest and courageous judges were being targeted. The Centre seems to be not favouring the elevation of Justice Joseph. The real reason for the objection is widely speculated as the Centre’s unhappiness over Justice Joseph rendering judgment against the Centre by quashing imposition of the President’s rule in the state of Uttarakhand in 2016 restoring the Congress government.
Last month, Supreme Court passed scathing remarks on how the government keeps names forwarded by the judiciary pending. In the same judgment the Court also came down heavily on the High Courts. The Court observed that instead of sending the fresh names to the government prior to anticipated judicial vacancy, the names are sent late and in some cases are not sent at all. In case, the names are sent, files are kept pending by the executive before sending the same to the Collegium. “Even after the clearance of the names by the Collegium, these remain pending at the level of the Executive. All this results in inordinate delay. Sometimes, it takes more than one year to complete the process from the date of forwarding the names till appointment,” the Bench observed. As a result, the careers and tenures of future High Court judges recommended by the Supreme Court Collegium are invariably cut short because of the delay, the court said.
The Supreme Court under the present CJI Dipak Misra took a remarkable step whereby all the names recommended for appointments are put up on the Supreme Court website along with the reasons behind such recommendations. The court posts on its website all decisions relating to the elevation, transfers and appointments of judges made by the collegium. This is a great step forward to bring about transparency in the judicial appointments.
But what is troubling is the delay in finalising the appointments. It seems the government is neither moved by the tears of the former CJI nor by the burden of an over-worked judiciary. The Apex Court has repeatedly expressed dismay over the inordinate delay caused by government’s inaction. While one can only speculate whether the delays in appointment of judges is a thought-out plan from the BJP-led government to damage the pillars of Indian democracy. But what seems absolutely clear is that such inaction does not speak well of a self-proclaimed Nationalist Government that talks of Transparency, Accountability and Good governance.