The Supreme Court on Monday refused to heed the Centre's plea to stop hearing a batch of writ petitions on the yawning number of judicial vacancies in High Courts across the country and the delay in filling them, noting that “"we cannot run away from our own cause".
"They are projecting the cause of the judiciary. What will happen if we run away from our own cause?" Chief Justice of India J.S. Khehar asked Attorney-General Mukul Rohatgi, representing the Centre, on the petition filed by citizens.
‘Avoid parallel process’
Mr. Rohatgi said the Supreme Court should deal with the delay in judicial appointments in High Courts on its administrative side and not lend its judicial weight to public interest petitions filed by individuals in a “parallel proceeding” like this.
But Chief Justice Khehar, flanked by Justice N.V. Ramana, said the Supreme Court had already decided to entertain the petitions, and having decided to do so, it would not now back out.
"Once the petitions have been entertained, whether to grant them or not... This question will be answered by us in a formal order. We will give the order. We cannot treat petitions like this at this stage in a slipshod manner,” Chief Justice Khehar clarified to the government.
Mr. Rohatgi said all problems on the delay would end if the draft Memorandum of Procedure (MoP) was finalised. The government and the Supreme Court Collegium, then led by Chief Justice Khehar's predecessor, Justice T.S. Thakur, had serious differences on several issues regarding the MoP draft, including that the AG should be consulted on judicial appointments. The last draft was handed over by the government to the Collegium in August 2016 for finalisation.
“It [the MoP] has been pending for the last six months. Once work on MoP is finished, a large number of problems would be over,” Mr. Rohatgi submitted.
He said the Central government would work together with the Supreme Court and the Chief Justice towards this end and resolve all issues."I have been instructed to say that any information, any detail, any officer will be promptly brought here..." Mr. Rohatgi assured the Bench.
But petitioner and advocate Ashwini Upadhyay intervened, saying the delay in judicial appointments was not the only demand in his petition.
He read out from his petiton seeking even to “double the number of judges” in the courts to combat pendency.
But here, Chief Justice Khehar favoured the government's line that existing vacancies for judges should be first filled up rather doubling their numbers.
Chief Justice Khehar, however, sought to distance the Supreme Court from the causes for the delay in filling up vacancies, saying "In a federal structure, the high court is the highest court in a State and is not either in the control of the government or the Supreme Court."
But Chief Justice Khehar agreed to consider the petitions in detail, ordering them to be posted for hearing after a month.
The petitions were taken up by the Justice Thakur Court last year and have been at the centre of various stinging remarks aimed at the the government for deating judges' appointments. In one unprecedented moment, then Chief Justice Thakur had accused the government of trying to "grind the judiciary to a halt" by stymyeing judicial appointments process.
Chief Justice Khehar, the author of the NJAC judgment in October 2016, is hearing these petitions for the first time.
