With the judicial vacancies in High Courts mounting and transparency yet to kick in over judicial appointments, the Supreme Court on Thursday chose to bank on the very Collegium process it wants to reform to appoint judges, at least for the time being.
Finally addressing growing anxieties about judicial vacancies touching 40 percent in High Courts, the Constitution Bench led by Justice J.S. Khehar said judges will continue to be appointed under the prevailing and much-criticised Collegium system, which was restored when the National Judicial Appointments Commission (NJAC) laws were struck down as “unconstitutional”.
Reserving its orders on proposals to reform the Collegium, Justice Khehar said that it was "needless to say the process of appointment of judges by the Collegium process as in vogue may continue”.
“It (judicial appointments) shall not be put on hold. It will continue," Justice J.S. Khehar observed.
Fresh judicial appointments have been on hold ever since the battle over the constitutionality of NJAC and the subsequent hearing to reform the Collegium system began to wage in the Supreme Court.
The five-judge Bench had sat for whole days on November 18 and 19, debating proposed reforms and pouring over 15,000 pages of suggestions to improve the Collegium system.
But Wednesday saw Attorney-General Mukul Rohatgi draw the Bench's attention to the rising judicial vacancies in the High Courts and how it has delayed disposal of cases.
The High Courts have over 400 judicial vacancies to a sanctioned strength of 1,050 judges. The number of vacancies in the Supreme Court itself will increase from three to five with the retirement of Chief Justice H.L. Dattu and Justice Vikramjit Sen in December 2015.
Earlier this morning, Mr. Rohatgi sparked a new stand-off between the highest judiciary and the government when he informed the Supreme Court that the Centre will not prepare a draft Memorandum of Procedure for judicial appointments and present it for judicial vetting.
Instead, Mr. Rohatgi suggested that either the Bench prepare one itself or leave it entirely to the Centre to do the job in consultation with the Chief Justice of India.
“It is not possible for us to submit a draft for judicial discussion. Either we ourselves do it or Your Lordships may pronounce a judgment on each facet, like the formation of a secretariat for Collegiums, etc. We shall then implement it or follow it,” Mr. Rohatgi submitted.
Mr. Rohatgi told the Bench that preparation of the memorandum of procedure is anyway an Executive function done in consultation with the Chief Justice of India, and this Bench need not burden itself on the nitty-gritties.
When Justice A.K. Goel on the bench asked Mr. Rohatgi why he had yesterday offered to prepare the draft, the AG said the suggestion had first come from the Bench and he had to obviously get instructions from the government.
On Wednesday, the bench had accepted Mr. Rohatgi's offer in his capacity as Attorney General to prepare a draft memorandum and place it for debate before the bench.
The bench had even given suggestions like an independent secretariat for the restored Collegium system, creation of database and widening the pool of judicial candidates to usher in transparency into the much-smeared Collegium style of functioning.
However, the bench's acceptance of Mr. Rohatgi's offer fell into troubled waters when senior advocates like Gopal Subramanium expressed apprehensions.
Mr. Subramanium had protested that the Bench should have "politely declined" Mr. Rohatgi's offer.
Here is what you need to know about the row:
What is the NJAC?
The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.
What is the Collegium system?
The Collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges. However, it has no place in the Indian Constitution. The system was evolved through Supreme Court judgments in the Three Judges Cases (October 28, 1998)
Why is Collegium system being criticised?
The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court.
The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.”
How and when was the NJAC established?
The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014. Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.
Who will be in the NJAC?
It will consist of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination.
If politicians are involved, what about judicial independence?
The judiciary representatives in the NJAC -- the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through.
A look at some of The Hindu's Comment pieces on the issue:
Judging the Judge-maker
The four judgments of the majority have reasserted judicial independence, with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure.> Read more
The citizen and the politics of the verdict
The judgment is founded on a mistrust of government, lack of respect for the people and unquestioned faith in the competence of judges> Read More
Perils of the messaiah complex
The NJAC judgment is, at its core, founded on a combination of mistrust of government, lack of respect for the people of India and with unquestioned faith in the absolute competence of judges.> Read More