New Delhi: The Narendra Modi government told the Supreme Court Thursday that it will follow timelines prescribed in the Memorandum of Procedure (MoP) to appoint judges to high courts.
Appearing before a three-judge SC bench led by Chief Justice S.A. Bobde, Attorney General K.K. Venugopal said that the MoP — a set of guidelines that governs appointments to the higher judiciary — underlines a timeline for all stakeholders involved in recommending and finalising high court judges and the Centre will follow the same.
Venugopal made the submission while the bench was hearing a case related to the large number of vacancies in 25 high courts across India. The SC had taken suo motu cognisance on the matter.
According to the law ministry’s data, over 38 per cent (more than 400) of sanctioned posts of judges are lying vacant across all the high courts in the country. Furthermore, several names that have been cleared by the SC collegium for appointment to various high courts have yet to be notified by the law ministry.
Venugopal cited the MoP after he was asked for a timeline that the government will adhere to on the appointment of HC judges.
“In this (the MoP) after the proposal is forwarded, the Chief Minister of the state has to give his or her views within six weeks. Thereafter, it will be sent to the Union law ministry (for intelligence inputs on the candidates) that in turn will send the file to the SC collegium. Although there is no time fixed for this procedure, the ministry can do so in three months,” he told the the SC bench, which also comprised justices S.K. Kaul and Surya Kant.
He added that according to the MoP, SC collegium should send the recommendations back within four weeks to the law ministry, which will then be forwarded to the Prime Minister’s office in three weeks.
Over the years, there has been much discussion on the MoP as well. On 6 December 2015, the Supreme Court had directed the government to finalise a new set of guidelines in consultation with the CJI to replace the existing one. A number of suggestions to improve the collegium system of appointment were listed in the order.
This was done after a Constitution Bench struck down a controversial law — the National Judicial Appointments Commission (NJAC) Act — passed by the Modi government in October 2015 that sought to give politicians and civil society a final say in the appointment of judges to the highest courts.
However, according to Venugopal, the SC is yet to revert to the government on the MoP that was drafted after the 2015 order.
High courts must send names within reasonable time: AG
In the past few weeks, the Centre and the judiciary has been engaged in blame game where both sides are blaming each other for the delay in appointments.
Inordinate delays, allegedly on the part of the central government, have been cited as the reason for the vacancies plaguing the high courts, according to the judiciary.
However, during the hearing, Venugopal highlighted the “unreasonable delay” on the part of high courts in sending names to the government.
He said that according to procedure, a Chief Justice must send proposals six months before a vacancy arises in the high court. However, this was not followed and the government is yet to receive names for 226 pending vacancies .
His criticism came when CJI Bobde asked him to suggest a timeframe, which the government will follow at each stage of the appointment process.
“This case can be brought to a reasonable fair conclusion if the government tells us the timeline which will be adhered to. We are telling you to tell us for the sake of court, judiciary and country that this is the timeframe within which the government and judiciary will coordinate and cooperate,” the chief justice said.
The attorney insisted on having a timeline for high courts but the CJI replied: “We will take care of the HCs. You talk about the timelines that you will voluntarily follow.”
Justice Kaul added: “Indicate a reasonable timeline within which you can operate.”
It was then the AG said that the government will follow MoP timelines.
During the hearing, the bench also asked Venugopal particularly about 10 names that were cleared by the SC collegium for appointments in three high courts but have been pending before the law ministry for more than six months.
In the last hearing on the matter, Justice Kaul had pointed out that five names pertaining to Calcutta High Court were lying with the Centre since 25 July 2019, one from Jammu and Kashmir since 17 October 2019, while a final decision was still awaited on four names that were forwarded to it.
In response, Venugopal said that the process will be completed in three months.
“A formal decision shall be taken in three months and collegium will be informed about it,” he told the bench, without indicating whether the government had any reservations over the names.
Ad hoc judges
In the last two hearings on the matter, the SC bench had also considered the proposal to appoint ad hoc judges to overcome the problem related to pendency and vacancies in high courts across the country.
Following an elaborate discussion on the issue and after hearing from various high courts, the bench Thursday said it will pass guidelines on what could be the possible circumstances under which the chief justice of a particular high court can nominate an ad hoc judge and for how long.
Since CJI Bobde is set to retire on 23 April, the order on the matter is expected to be out before then.
(Edited by Rachel John)