As the Supreme Court and the Centre differ over the delay in appointment of judges in the High Courts, lawmakers have for the first time joined the fray. They have tabled a Parliamentary Standing Committee report accusing the Supreme Court of distorting the original constitutional mandate and showing an “unnecessary zeal” for primacy in judicial appointments.
The report, tabled in both Houses of Parliament, concludes that the judiciary’s zeal for primacy over the government had led to the “present unfortunate situation”. Nearly 43 per cent of the approved strength of judges in High Courts is vacant. The draft Memorandum of Procedure for judicial appointments has been in limbo for almost a year.
The Parliamentary Standing Committee on Personnel, Public Grievance, Law and Justice, headed by Congress leader Anand Sharma, has directly contradicted the Supreme Court’s judgment on the National Judicial Appointments Committee (NJAC) law, which upheld the concept of judicial primacy.
Shared responsibility
In fact, the committee recommends that the original constitutional position on judicial appointments be brought back. The appointment of High Court judges is “essentially” an executive function and a shared responsibility of the government and the judiciary.
“The distortion in the original mandate of the Constitution arising from the judgments of the apex court in the Second Judges Case and subsequent cases needs to be reversed and the original constitutional position needs to be respected in letter and in spirit, for which the government may take appropriate measures,” the committee recommended.
The committee had taken suo motu cognisance of the “sad state of affairs” caused by the “inordinate delay in filling the vacancies in the Supreme Court and High Courts”. The report may act as a trigger for kick-starting legislative efforts to overcome the impact of the Supreme Court’s October 16, 2015 judgment scrapping the NJAC law.
The committee said the Constitution’s makers believed that only an equal involvement of multiple constitutional authorities in judicial appointments would mould an independent judiciary. On this, the committee quotes Dr. B.R. Ambedkar, who said that “after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have”.
It refers to how the Supreme Court itself, in the NJAC judgment, had concluded that the Collegium system lacked transparency.
The committee noted that both the Supreme Court collegium and the government reject names of judges without showing any cogent reasons. “Such practices are against the principles of natural justice... the Committee feels that Glasnost in the process of appointment of judges is the need of the hour.”
The parliamentary report may also have hinted that the NJAC judgment was not heard by a sufficient quorum of judges. It recommended that the Supreme Court ought to set up a Bench of a minimum 11 judges while deciding the validity of a constitutional amendment.
