Centre's next move keenly awaited on judicial appointments

After getting a rap from Chief Justice of India T S Thakur, the Narendra Modi government will have a lot of explaining to do before a parliamentary standing committee which has begun examining the delay in filling up of vacancies in the Supreme Court and high courts.

The panel headed by senior Congress MP Anand Sharma is of the view that around 42% of sanctioned posts in higher judiciary are lying vacant for quite some time which it believes is “alarming” and that it squeezes access to justice for common people. The panel intends to identify systemic shortcomings and suggest improvements in appointments to higher judiciary.

The Congress has lapped up the executive-judiciary conflict over appointments as Sharma, a former Union minister, had earlier held the Centre responsible and accountable to what he had described “alterable” situation arising out of 456 vacancies pending in 24 high courts. 

The slugfest between the judiciary and the present government for improving judges’ strength has its roots in the Supreme Court striking down the National Judicial Appointments Commission (NJAC). Tho-ugh the verdict came as a setback to the Centre, the apex court is itself under glare from within and the public on its attempt to defend the existing collegium system of appointments. More than a month ago, SC judge Justice Jasti Chelameswar had openly voiced his opposition to the present system of appointments for lack of transparency.

The judge, in an interaction with a newspaper, had given his reason for boycotting collegium meetings. “There is nothing personal in my stand. Let judicial appointments be made on some objective criteria. The judiciary should evolve a procedure for bringing in transparency in appointments after having rejected both the government’s arguments and rescinded a parliamentary law on NJAC,” the judge said.

Realising the heat from the SC, Union Law and Justice Ministry has compiled statistics for a review, which took place at the highest level of the government last month, to assess facts on vacancies in high courts and the SC. The ministry also collated data of the vacancies in courts during the UPA regime to arm itself with information for arguing its viewpoint in the legal battle.

As per the ministry’s data, the Centre had lined up 280 cases of appointments. Of this, it had cleared appointments of 96 judges till last month which it claims is third highest in the past eight years. Other than that four judges were elevated to the SC, 14 were made chief justices of high courts while four of the chief justices were transferred. Besides, it says that 121 additional judges were made permanent in high courts – which top government officials boast is significant and belies popular perception on judiciary-executive stand off.

There are 155 recommendations which are pending at various stages. These include more than 40 recommendations of appointments for six high courts which are awaiting the Supreme Court collegium nod. And chief ministers or governors are still to give their opinions for appointment of 53 judges at six high courts. In these instances, security vetting has also not been done so far.

The government is likely to clear more appointments in the next two months.  The ministry sources said high courts have rarely operated with full strength and there have always been vacancies if compared with sanctioned posts. The 24 high courts have a total sanctioned strength of 1079.  

Appointment procedure
The process is that a high court collegium clears names for appointment as judges to fill up the vacancies. The candidates considered are through promotions from trial courts or lateral entry of lawyers. The list has to be cleared by the SC collegium for appointments in high courts. Before the President gives his assent and appointments are notified by the law ministry, views of the chief minister/governor and inputs of intelligence agencies are also taken by the government. When there is a difference of opinion on one or more names, the government sends the proposal back for a review.

Last Friday, Chief Justice Thakur’s anguish against the government – “may now as well close court rooms down and lock justice out” – during a hearing on the issue has compounded fears hanging on the government. Justice Thakur was miffed over the government sitting on the recommendations cleared by its collegium. The government, on the contrary, had put the ball in the apex court by saying that the delay was owing to the judges not clearing the fresh Memorandum of Procedure (MoP) for appointments which has been a flashpoint in the long stand-off between the two.

The CJI, however, stated that there was no bar in clearing the pending appointments through the existing MoP. If the government could clear a set of names through the existing format, then why is it reluctant to fill up other vacant posts instead of seeking ref-uge in the new procedure, wondered a legal expert. The government, aware of the SC’s dislike for executive interference in judicial appointments, is for introduction of an elem-ent of outside scrutiny in the screening pro-cess of new MoP which is still to be finalised.

The NDA appears to be firm on reframing the MoP, for it believes that this was the right the court gave the Centre to bring transparency and objectivity in appointments. A government official argued that even Ambedkar was not in favour of giving unquestionable powers to the CJI on appointments in higher judiciary.

For that reason, the Constitution framer had stressed that appointments should be held in “consultation” and not with “concurrence” of the CJI. An attempt is being made to retain that spirit of Ambedkar’s rationale, the government official explained. The legal circle is anxiously awaiting the government’s next move. Will it reduce trust-deficit among the judiciary and the executive? November 11 – the day the apex court is scheduled to hear the matter again – will give some indication.