SC ASKS FOR TIMELINE ON APPOINTMENTS
CONTEXT
- The Supreme Court questioned the government about the delay in clearing Collegium recommendations for judicial appointments to various High Courts.
- The bench asked the Centre if there was a timeline for government clearance of such recommendations.
CONCERNS
- The Bench noted how recommendations from the High Courts of Bombay and Allahabad dated back to May or June 2020.
- It highlighted that 189 proposals for judicial appointments were still pending.
- Earlier the Supreme Court had conveyed its alarm at the rising number of judicial vacancies in various High Courts.
- On average, the courts suffer at least 40% vacancies.
- Some of them were functioning only with half their sanctioned strength.
- Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
- The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
- Intelligence Bureau (IB): It is a reputed and established intelligence agency. It is authoritatively controlled by the Ministry of Home Affairs.
- It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.
CRITICISM OF THE COLLEGIUM SYSTEM
- Opaqueness and a lack of transparency.
- Scope for nepotism.
- Embroilment in public controversies.
- Overlooks several talented junior judges and advocates.
ATTEMPTS TO REFORM THE APPOINTMENT SYSTEM
- The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
RELATED CONSTITUTIONAL PROVISIONS
- Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
- Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.
WAY FORWARD
- Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.