New Delhi: Last December, a Supreme Court bench comprising Justices Sanjay Kishan Kaul and K.M. Joseph came down heavily on the central government for the large number of vacancies in the higher judiciary.
At last count, over 400 out of the total 1,079 judges’ posts in various high courts were lying vacant.
But, while the government certainly has played a part in the rising number of vacancies, the higher judiciary is also to blame — according to data accessed by ThePrint, the collegiums of various high courts have not recommended any names for filling up 221 of their vacancies.
Under the existing memorandum of procedure (MoP) for judge appointments to the Supreme Court and high courts, it is incumbent upon the collegium to make recommendations “six months prior to occurrence of vacancies”. But this is hardly ever done.
As of 13 December 2019, the high courts of Chhattisgarh, Delhi, Jharkhand, Madhya Pradesh, Orissa, and Punjab and Haryana had not recommended the names of lawyers for vacancies meant to be filled from the Bar. Some of these vacancies have existed for over five years; and in the case of the Chhattisgarh High Court, the oldest vacancy dates back to 24 April 2011.
It’s a similar case for the posts meant to be filled by elevating serving districts and sessions judges. At the high courts of Andhra Pradesh and Telangana, Delhi, Gauhati, Himachal Pradesh, Jharkhand, Madhya Pradesh, Manipur, and Punjab and Haryana, such posts have been vacant for periods ranging from two to five years.
Sources told ThePrint that the central government has apprised successive Chief Justices of India about the failure of the collegiums to make recommendations in a timely manner. However, there has been little change.
Why is this issue important now?
At last year’s hearing mentioned above, the bench of Justices Kaul and Joseph had expressed concern over mounting vacancies, and said the central government hadn’t been processing names recommended by the collegium in a time-bound manner.
The bench, while pointing to several judgments of the Supreme Court on appointments to the higher judiciary, said once the names had been reiterated by the Supreme Court collegium, the government had no choice but to process the appointment.
In its order, the bench also pointed out that 213 names recommended for appointment to various high courts were still pending, asking the government to provide details for each of these cases.
However, during another hearing of the case last week, Attorney General K.K. Venugopal questioned the decision of the bench to take up the matter on the judicial side, saying it was an administrative matter between the collegium and the central government.
Venugopal also pointed out that around 35-40 per cent of the names recommended by high court collegiums are rejected by the Supreme Court collegium.
However, the bench, refused to be swayed by his arguments, and said it was pained by the Centre’s stand.
‘There is a delay on our part too’
ThePrint spoke to a former Supreme Court judge who has been part of the collegium, and asked for a comment on the failure of high court collegiums to recommend names before the vacancies arise.
“Yes, there is no doubt there is delay on our part too. But it is mostly procedural or due to the lack of suitable candidates,” said the judge, on condition of anonymity.
“The government, especially the current government, seems to be on a spree to stall names recommended by the collegium without any reason. In several cases, even after the SC collegium reiterates a name, this government sits on those named indefinitely without assigning any reason. Unfortunately, this seems to have become the norm rather than an exception.”