- Give reasons for the continuing Judiciary – Executive tussle.
- Mention briefly, how, the tussle is affecting Judiciary as an institution.
- Provide suggestions to simplify judicial appointments along with tackling the accountability issues arising out of the same.
Recently Indian Law Minister stated in Lok Sabha that as of 2019 there are around 43.55 lakh cases are pending in the high court, 1.5 lakh in the Supreme Court and nearly 3 Crore in Subordinate Courts. One of the reasons for such high pendency is delay in judicial appointments and resultant vacancies. As of December 2019, 38 per cent of all sanctioned High Court posts for judges are lying vacant.
Process of Judicial Appointments:
- Higher Judiciary – Supreme Courts and High Court
- Pre 1990’s – before Three judges case political executive held supremacy over judicial appointments where many times seniority rule was broken for appointment for favourable Chief Justice of India.
- Post-1990’s – after Three Judges Case – Collegium system has evolved where Collegium of CJI and four senior-most judges of SC decide appointments/elevation of judges/lawyers to Supreme Court and transfers of judges of High Courts and Apex Court. Executive only has a limited role in that it can send back the recommended names for review once to Supreme Court.
- Subordinate judiciary – State governments select and appoint the judges whereas administrative control lies with the High Court and Supreme Court.
Reasons for delay in Judicial Appointments:
- Tussle between Judiciary and Executive – post the Three Judges Cases the supremacy of Collegium in judicial appointments has been established. With a strong political party at the Centre, the executive is trying to reestablish its role in judicial appointments as seen through 99th Constitutional Amendment – NJAC Act.
- Revoking of National Judicial Appointment Commission Act by the Supreme Court so as to preserve its independence is seen as against the fine balance between the roles of executive and judiciary in judicial appointments desired by the Constitution makers.
- Failure to agree over Memorandum of Procedure has further
- Overall secrecy of judicial appointments and opaqueness over criteria for recommendation of names gives opportunity to the political executive to delay judicial appointments on vague reasons.
- One of the biggest problems is the issue of “judicial dynasties” or collegium which prefers to appoint relatives, friends, former colleagues and juniors.
Often repeated saying of “justice delayed is justice denied” is becoming a reality in Indian courts. To correct this injustice the Centre and the judiciary need to collaborate on finding practical solutions.
Way out of such logjam:
- At least the names on which the Supreme Court Collegium, the High Courts and the governments had agreed upon should be appointed within six months
- Including retired judges as ad hoc judicial officers based on periodic need assessment and deploying judicial resources efficiently.
- In order to ensure transparency, fairness and accountability, the need is to adopt a system of evaluation to screen all candidates whose names are proposed for selection.
- The criteria for selection should be more detailed and it should not only rest on the seniority of the judges.
- With recent pronouncement by SC to bring office of CJI under RTI, it is time to bring the appointments within the purview of RTI Act.
Such long delays in Judicial appointment is not acceptable in already overburdened judiciary. Both Executive and Judiciary must agree on “a continuous, collaborative and integrated process, where the government is an important consultee”.