The Supreme Court on Monday asked the government why it was “holding back” recommendations for appointments to various High Courts even after reiteration by the Collegium.
“Once the Supreme Court Collegium reiterates the name of a candidate for appointment, then you [government] cannot hold back... Why are you keeping these recommendations pending? Why don’t you accept them? It is the law,” Justice K.M. Joseph told Attorney General K.K. Venugopal, for the Centre.
The Bench of Justices Sanjay Kishan Kaul and Justice Joseph was conveying its alarm at the rising number of vacancies in various High Courts. Some of these courts are functioning only with half their sanctioned judicial strength. On an average, they suffer at least 40% vacancies.
Mr. Venugopal defended saying the collegium delays the appointment process quite as the government. The government’s delay is largely because it thoroughly combs the antecedents of the candidate, leaving no room for error. The process, on an average, takes at least 127 days.
On the other hand, the judiciary takes 119 days on an average merely to forward the file to the government. Mr. Venugopal challenged the Bench to issue formal notice to the various High Courts to explain the delay. He said some courts like Allahabad and Andhra take over 45 and 50 months to even report a vacancy. The appointment of Justice P.V. Kunhikrishnan of the Kerala High Court took two years to come through.
Mr. Venugopal referred to how the Collegium system was put to an end through the National Judicial Appointments Commission to make the appointments process transparent and participatory, only to be thrust out by the Supreme Court.
“We had brought a perfectly fine Constitutional Amendment [NJAC]... We can perhaps bring another amendment,” Mr. Venugopal told the court.
Justice Joseph replied that “You or I cannot re-open that [NJAC] issue.”
Noting that there are a 199 vacancies in the High Courts, Justice Kaul said the efforts should be made to kick-start the appointments process to the courts early.
“Now it is six months before a judge, it should be made even a year before the retirement. Some internal arrangement should be devised... Appointment process should be continuous. Now it is like by the time one set of vacancies is filled, another lot arises and neutralises the process,” Justice Kaul observed.
“Have the Law Commission of India to conduct an elaborate study and suggest solutions,” Mr. Venugopal submitted.
“But the post of the Chairman of the Law Commission is itself lying vacant, is it not?” Justice Kaul asked Mr. Venugopal.
The court ordered the Registrar Generals of all the High Courts to submit reports of the pending judicial vacancies and likely ones in the future within four weeks.
