Executive-judiciary spat hit judges’ appointment in 2017

Officials confirmed that the drop was because the executive and the judiciary had been unrelenting on two contentious clauses in the draft Memorandum of Procedure that will modify the process of the selection of judges.

india Updated: Jan 01, 2018 23:20 IST
Jatin Gandhi
Jatin Gandhi
New Delhi, Hindustan Times
Executive-judiciary spat,Judges' appointment,Supreme Court
Appointments to the SC and high courts fell from 126 in 2016 to 115 in 2017 – with only 12 new judges appointed to the high courts in the last three months of the year. (File)

The inability of the executive and the top judiciary to reconcile their differences over a new mechanism for the selection of judges has led to a slowdown in appointments to the Supreme Court and high courts across the country, law ministry officials said on Monday.

Appointments to the SC and high courts fell from 126 in 2016 to 115 in 2017 – with only 12 new judges appointed to the high courts in the last three months of the year. As many as nine high courts are now being run by acting chief justices, and the Supreme Court is functioning with 25 judges, six short of the sanctioned strength of 31.

Officials in the law ministry confirmed that the drop was because the executive and the judiciary had been unrelenting on two contentious clauses in the draft Memorandum of Procedure (MoP) that will modify the process of the selection of judges.

A source privy to the exchanges between the two sides said that the government wants to have the power to reject a candidate’s name on the grounds of national security and wants a secretariat set up to examine complaints against judges, but the higher judiciary is not agreeable to these conditions.

The shortfall could worsen in 2018, with seven more SC judges, including Chief Justice of India (CJI) Dipak Misra, set to retire this year. The earliest retirement – that of Justice Amitava Roy – will be on March 1.

“We haven’t received the recommendations from the SC collegium either for chief justices of the high courts or the vacancies in the supreme court,” a ministry official confirmed on Monday. According to the existing procedure, the process for appointing a judge should be started six months before a vacancy arises.

The high courts, too, continue to function well below their sanctioned strength of 1,079, with 395 vacancies as of December 31. “For many vacancies, we have not received the recommendations from the HC collegiums. The other appointments are in the pipeline,” Minister of State for Law and Justice PP Chaudhary told Hindustan Times.

Supreme Court judges are selected by the SC collegium – a body of India’s five top judges headed by the CJI.

The collegium sends its recommendations to the law ministry, which obtains a background check on the selected candidate from the Intelligence Bureau and a final nod from the Prime Minister’s Office, after which the appointment is notified.

For HC judges, the high courts have their own collegiums, which shortlist candidates and send the details to the law ministry. The ministry forwards their names, professional records and IB reports to the SC collegium, which takes a final decision.

In 2014, Parliament had passed the National Judicial Appointments Commission Act, which sought to end the two-decade-old practice of judges appointing judges through collegiums, but the SC struck it down as “unconstitutional” on October 16, 2015.

Later that year, the same bench, headed by Justice JS Khehar, ruled in favour of formulating a new MoP for greater transparency in appointment of judges. It asked the government to finalise the procedure “in consultation with the CJI”.

While Chaudhary said the two sides were close to “finding common ground”, he added that the government is only going by what the SC ruled in 2015. “We are still hopeful that the collegium will follow the judgment in letter and spirit. The government has no reservation in following the judgment while finalising the MoP,” Chaudhary said.

First Published: Jan 01, 2018 20:19 IST