Supreme Court questions govt over delay in judges’ appointment
In 2015, the top court struck down a law the government brought – the National Judicial Appointments Commission (NJAC) Act – to end a more than 20-year-old practice, unique to India, of judges appointing judges under a collegium system.india Updated: Oct 28, 2017 07:19 IST
The Supreme Court asked the government’s top law officer on Friday to explain the delay in finalising a new procedure to appoint judges, setting up possibly yet another confrontation between the judiciary and executive.
The Supreme Court and the government have been at loggerheads over how to appoint judges, one of several areas of divergence between the two, the most recent being the judiciary’s stand over the dismissal of state governments and the right to privacy.
In 2015, the top court struck down a law the government brought -- the National Judicial Appointments Commission (NJAC) Act -- to end a more than 20-year-old practice, unique to India, of judges appointing judges under a collegium system.
The court had then asked the government to draft a so-called new Memorandum of Procedure (MoP) to lay down guidelines for appointments to the higher judiciary in consultation with the chief justice of India and the collegium. But the two sides have failed to agree on it.
A bench of justices AK Goel and UU Lalit observed that more than 22 months had passed since the top court had asked the government to write an MoP.
“Even though no time limit was fixed by this court for finalisation of the MoP, the issue cannot linger on for indefinite period,” the court said, asking the attorney general KK Venugopal to come back with an explanation of the delay.
More than four million cases are pending in 24 high courts which are together short of 378 judges. Also, some high courts do not have a full-time chief justice.
The court is hearing a private petition challenging the validity of all judicial appointments after the top court struck down NJAC.
Senior advocate KV Vishwanathan was asked to assist the court in the matter. It fixed November 14 to hear the attorney general.
In March this year, the Supreme Court collegium – a panel of top five judges - unanimously rejected the Centre’s proposal that it should have the power to reject a nomination for reasons of “national security”. Calls for a permanent secretariat to appoint judges were also disallowed.
On Friday, the bench expressed concern over delay in the appointment of chief justices to high courts.
Under the current MoP, the SC collegium initiates the proposal to recommend a new chief justice before the term of the incumbent ends to ensure timely succession. An acting chief justice cannot be in office for more than a month.
In Uttar Pradesh, the last round of appointments were cleared by the government almost a year after the top court’s collegium made its recommendations. Similarly, names cleared for the Madras high court were delayed by a year.
In a related development, the Supreme Court collegium has decided to assess judgments of additional judges before they are confirmed as permanent judges of high courts.
Judgements of additional judges will now be sought from the respective chief justices and evaluated by a committee of two Supreme Court judges to be nominated by the chief justice of India.
The move came days after the government urged the collegium to take a relook at its decision in March to end the practice of evaluating the judicial performance of additional judges.