The Chief Justice of India, T.S. Thakur, has repeatedly expressed his concern about the chronic shortage of judges and questioned the delay on the part of the executive in filling up vacancies in the high courts. It is a matter of equal concern that the executive and the judiciary are yet to agree on a fresh Memorandum of Procedure (MoP) for appointments to the superior courts. While the crisis due to the shortage of judicial hands is apparent, there is no doubt that any further delay in reforming the collegium system will hurt the institution’s image. The Union government, tasked with revising the MoP, is awaiting the approval of the Chief Justice and his senior colleagues for its draft proposals. It may appear on the face of it that the two issues — delay in filling up vacancies and agreeing on a MoP — are unrelated. But they are, inasmuch as it would be odd to continue appointing judges under the collegium at a time when a new procedure for doing so is under active consideration. Given that there are over 475 vacancies in the high courts, it is arguable whether so many judges should be appointed under a system that is going to be shortly dispensed with and, worse, considered inadequate and opaque. Even the Constitution Bench that invalidated the laws relating to the NJAC conceded that the collegium process requires improvement. One judge even called for glasnost and perestroika . All in all, an early conclusion of the revised procedure is as much in the judiciary’s interest as that of the executive.
The Centre believes its draft MoP adheres to the framework laid down by the Supreme Court. It seeks to “widen the zone of consideration” to reduce arbitrariness as well as nullify perceptions of favouritism in making judicial appointments and transfers. Greater transparency is sought to be introduced through a process of vetting by screening committees at the high court and Supreme Court levels. It envisages a permanent secretariat for the collegium to gather and scrutinise data relating to prospective appointees, and lays down a judicial mechanism for redress of complaints against judges. Reports suggest that the judges are uneasy about the screening process and have grave reservations about the executive claiming a right to veto specific recommendations on the grounds of national security or public interest. There is little doubt that consensus on what is a contested constitutional space is not easy. But there is a compelling need for the two branches of government to forge one quickly. An impression should not gain ground that one side wants to dilute judicial primacy in appointments or that the other is delaying the infusion of transparency.
