The Narendra Modi government is keen to implement the Supreme Court’s constitution bench order to ensure transparency, objectivity and accountability in judicial appointments, law ministry sources said on Tuesday.
The assurance comes a day after Chief Justice of India TS Thakur expressed disappointment over the Prime Minister not mentioning judicial appointments in his Independence Day speech.
A senior law ministry source said: “The government is alive to the deepening concern in the country as espoused by the judges in the constitution bench itself that the system needs improvement to inspire confidence.
“There are many issues on which there is convergence of opinion with the Supreme Court collegium and the government is doing its best to expedite judges’ appointments.”
Judicial appointments have been in limbo after the Supreme Court struck down last October a new system giving the government a say in picking top judges. The power to appoint senior judges rests on a group of India’s top judges in the collegium system.
According to official figures, India’s 24 high courts have nearly four million cases pending before them as 478 of 1,056 sanctioned posts of judges are vacant. Around 30 million cases await disposal in trial courts where 4,432 of 20,502 sanctioned posts are yet to be filled. The top court too has only 28 judges against the sanctioned strength of 31 judges to tackle around 60,000 cases.
But the law ministry source said 52 new judges have been appointed and 110 additional judges confirmed in high courts after the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act.
“Nine high court chief justices and three Supreme Court judges have been appointed. Besides, 28 high court judges have been transferred and the process for clearing the appointment of 250 more judges is on.”
Maintaining that usually the process for appointment of a judge takes months to complete, the source pointed out 73 of the recommendations for appointment were sent to the government only on July 30, August 2 and 5. “The vetting process is on.”
The sources said 4,432 vacant posts of judges in subordinate courts across the country can be filled only by the high court concerned and the government had no role to play.
Much of the vacancies in high courts are primarily because the then CJI chose not to initiate appointments during the pendency of petitions challenging the NJAC Act, they said.
In its order last December 16, the constitution bench asked the government to finalise the memorandum of procedure (MoP) that details the process of appointing Supreme Court and high court judges.
The MoP is supposed to include provisions on eligibility criteria, transparency in appointment process; establishment of a secretariat in each high court and the top court; and a mechanism for redressal of complaints against those being considered for judgeship.
Government sources said since finalisation of the MoP was taking time, the then law minister DV Sadananda Gowda wrote to the CJI on January 6, saying “the government was not averse to the process of appointment being resumed, if it otherwise meets the approval of the Supreme Court collegium”.
Senior advocate and former additional solicitor general Vikas Singh said: “A peculiar situation has arisen where without awaiting the finalization of MoP ensuring transparency as mandated by the SC constitution bench, appointments have to be made.
“In this situation it would be appropriate for the CJI to constitute either a five-judge or seven-judge bench to look into the aspect of MoP and decide it judicially so as to obviate the impasse that has been created due the December 16 constitution bench verdict,” Singh added.
The SC had appointed a panel which received around 4,000 suggestions for improving the functioning of the collegium and 1,400 of these suggestions were forwarded to the constitution bench.
Sources said Justice Kurian Joseph of the top court indicted the collegium system in the October 2015 verdict for lack of transparency, accountability and objectivity. Justice Joseph had also questioned “the active silence of the executive in not preventing such unworthy appointments…”
The sources also talked about a situation wherein to accommodate a schedule caste, schedule tribe, woman, minority or an outstanding talent or to give representation to a geographical region, normal rule of seniority can be ignored.