The Supreme Court should make appointments of judges in higher judiciary a transparent process, the law ministry said on Friday, hitting back at the top court hours after it admonished the government for not filling up vacancies.
PP Chaudhary, minister of state for law and justice, told HT that the Supreme Court collegium should focus on clearing the memorandum of procedure (MOP), a set of guidelines on appointment of judges to the apex court and 24 high courts in the country.
The SC collegium is a body of the country’s top five judges headed by the chief justice.
“When the Supreme Court in its own judgment of December 16 stressed on a fresh MOP, the focus should be on finalising that and not on filling vacancies hurriedly and in a non-transparent manner,” Chaudhary said in what is by far the strongest reaction by a minister in the perceived stand-off between the judiciary and the executive.
Two months after the SC struck down the National Judicial Appointments Commission Act in October 2015, a five-judge bench had laid down the guidelines for a fresh MOP for making appointments to the higher judiciary.
“Does the SC want judges’ appointments to remain non-transparent in spite of the December 16 judgment? No doubt there is no time limit prescribed in it for finalising the MOP but we sent them the draft MOP on August 3. The SC should immediately finalise it so we can fill the remaining vacancies in a transparent manner under the fresh MOP,” Chaudhary said.
He said filling up more vacancies based on the old MOP “goes against the spirit of the December judgment.”
Citing statistics to bolster the government’s argument, the minister said on an average, the SC collegium rejects nearly 30 per cent of the names sent to it by the high courts. The high courts withhold names for another 30 per cent of the vacancies.
“The rejections are due to lack of transparency in the process and the SC in its judgment had visualised that problem,” Chaudhary said. He said while the process for filing up a judge’s position should be started six months before it falls vacant, “the recommendations have only been coming three to four years later.”
He said in a particular instance in the Sikkim HC, there was a delay of nine years on the part of the HC collegium in sending the name of candidates for appointment.
Due to the NJAC matter pending in court, vacancies were not filled up between April and December 2015. The government wrote to the CJI in January saying pending the finalisation of the MOP, appointments could continue.
Chaudhary said the Modi government has made 86 fresh appointments of high court judges while 139 additional judges have been made permanent or their terms extended since then.
Four judges have been appointed to the SC and 14 chief justices to the HCs. “No other government in a nine-month period has made so many appointments. It shows our intent,” he said.