410 vacancies but govt sat on names — why 2019 wasn’t a good year for judge appointments

Law ministry data says total number of vacancies in Supreme Court & high courts was 392 in the beginning of 2019, and increased to 410 by year-end.

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New Delhi: Earlier this month, the Supreme Court came down heavily on the central government for delay in appointment of high court judges, whose names were recommended by its collegium. But the issue of limited judges and a huge backlog of cases continue to plague the judiciary.

According to data maintained by the law ministry, there were 392 vacancies in total in the Supreme Court and HCs across the country when this year began. But by the end of 2019, there were 18 more vacancies, taking the total number to 410.

The top court’s order, dated 6 December, had said 213 names were pending with the government. It also said names on which the High Court collegium, Supreme Court collegium and the government have agreed upon should be appointed within six months.

Justices Sanjay Kishan Kaul and K.M. Joseph, in their order, further emphasised that appointments required “a continuous, collaborative and integrated process, where the government is an important consultee”.

Here are some of the appointments that have been cleared or reiterated by the Supreme Court collegium this year but still awaits the central government’s approval.

P.V. Kunhikrishnan as Kerala HC judge

P.V. Kunhikrishnan was first recommended as judge of the Kerala HC by an HC collegium in March 2018. Thereafter, the SC Collegium also approved his name in October 2018 and again reiterated its decision on 15 February this year.

But the law ministry has objected to the suggestion, even as the collegium later held that there was no reason to stop Kunhikrishnan’s elevation as an HC judge.

The Intelligence Bureau (IB) had also recorded Kunhikrishnan’s image as “good and professional”. However, 10 months after his name was cleared by a CJI-led collegium, Kunhikrishnan is yet to be appointed.

S.V. Shetty as Karnataka HC judge

Advocate S.V. Shetty’s name was cleared by a Supreme Court collegium as judge of the Karnataka HC in October last year. While the law ministry had rejected it, the collegium again recommended his name in March this year.

The government turned it down once more, saying Shetty had a “nexus with the underworld and land mafia”.

The collegium has dismissed these allegations of the government and it even gave an IB report on Shetty to back its suggestion. His appointment, however, still remains awaited.

M.I. Arun as Karnataka HC Judge

Another advocate who still awaits his appointment as the Karnataka HC judge is M.I. Arun. His name was similarly suggested by a Supreme Court collegium and turned down by the government, stating he did not have a “clean professional career”.

The law ministry has also accused him of indulging in “corrupt practices”.

In this case too, the Supreme Court collegium had produced an IB report on Arun, which said the latter was fit to be an HC judge. His appointment, however, is still awaited.

C. Emalias as Madras HC judge

C. Emalias’ name as judge of the Madras HC was recommended by a Supreme Court collegium in 2017 and reiterated in August this year — but rejected by the government.

While stating that the collegium had not found “any merit” in the law ministry’s note rejecting Emalias’ name, it also stated that complaints made against him were devoid of merit. But this appointment too is yet to take place.

The IB had earlier stated that it found nothing adverse in Emalias’ reputation as an advocate and dismissed all complaints against him as “malicious”.

Delay in appointment of chief justices too

The appointments of another 13 judges to Allahabad HC, which were cleared by the CJI-led collegium in 2018 and reiterated again in February this year, have been pending. The government had said 10 out of these 13 lawyers failed to meet the minimum income criteria required to be recruited into higher judiciary.

To become an HC judge, an advocate must have an average net professional annual income of Rs 7 lakh in the preceding five years before her or his recommendation by the Supreme Court collegium.

The delay in appointments have also been with respect to chief justices in HCs. Two of the glaring examples were appointment of Justice Akil Abdulhamid Kureshi as the chief justice of Madhya Pradesh HC and Justice Vikram Nath as the chief justice of Andhra Pradesh HC.

The Supreme Court collegium had recommended Kureshi’s name in May but the government had returned the recommendation, asking the collegium to review its decision.

The Gujarat High Court Advocates’ Association had also filed a plea in the Supreme Court in June this year, alleging that the central government had deliberately stalled Kureshi’s appointment as he had given certain adverse orders against Narendra Modi, when he was the Gujarat chief minister, and Amit Shah, when he was the state cabinet minister.

The government finally approved his designation as the chief justice of Tripura HC in November.

In the case of Justice Nath, the Supreme Court collegium recommended him as the chief justice of Andhra Pradesh HC in April this year. The government objected to it. The collegium wrote again, asking why Nath’s name was to be reconsidered.

The government then recommended him as the chief justice of Gujarat HC in August.

‘Time for CJI to take issue up’

Pointing at the alarming nature of delays that have been taking place, and the central government’s repeated objections to them, former Justice B.S. Chauhan, who is the chairman of the 21st Law Commission of India, said the Supreme Court should try and tackle the issue from its “administrative and judicial sides”.

“The CJI can speak to the prime minister to figure out why its reiterations are not being acted upon. The National Judicial Appointments Commission (NJAC) and collegiums are all creations of the judiciary and there is no reason why the judiciary cannot take a call. When there is no time limit fixed for the central government to respond, then the expectation is of a reasonable time,” Justice Chauhan told ThePrint.

A former Supreme Court judge, Chauhan was also categorical in stating that judicial vacancies have to be addressed. “When a new building of Rajasthan HC was being inaugurated recently, one of the guests had pointed out that even though crores have been spent on the building’s infrastructure, it would be of no use if judges aren’t there,” he said.

In agreement with Justice Chauhan, a former CJI (who did not wish to be named) told The Print that if “reiterations of the SC collegium were ignored” it was nothing but an “insult to the judiciary”.

“I have been a part of the collegium…and it is expected from the central government to appoint a judge if the SC collegium reiterates its decision. Not heeding to this is a grave insult to the judiciary as the collegium goes into every minute detail before reiterating its earlier stance. There needs to be a time limit in place by amending the Memorandum of Procedure too,” the former CJI added.