Judicial Appointments Conundrum Post-NJAC Verdict

[op-ed snap] Strength in numbers: On judge vacancies

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Judicial vacancies - Appointments delay

Context

On December 10, the Supreme Court of India said that 213 names recommended for appointment to various High Courts are pending with the government. 

Judicial Vacancies

  • High court judges – Data show that 38% of all sanctioned posts for High Court judges are lying vacant as of December 1.
  • Half capacity – High Courts of some states including Andhra Pradesh and Rajasthan are functioning at below half their actual capacity. 

Timelines

  • At each level of the appointment process of judges to the higher judiciary, there are time periods specified. 
  • MoP – The Memorandum of Procedure states that appointments should be initiated at least 6 months before a vacancy arises and 6 weeks of time is specified for the State to send the recommendation to the Union Law Minister. After this, the brief is to be sent to the Supreme Court collegium in 4  weeks. 
  • Collegium – Once the collegium clears the names, the Law Ministry has to put up the recommendation to the Prime Minister in 3 weeks who will, in turn, advise the President. 
  • No time limit – Thereafter no time limit is prescribed and the process comes to a standstill.

Supreme Court judgment

  • Deadline – The court has fixed 6 months to appoint at least those whose names the Supreme Court collegium, the High Courts and the Government have agreed upon. 
  • The Supreme Court’s recommendation now of a time limit to these appointments is welcome. 
  • Post NJAC – The equation between the court and the Union Government has been strained by the former’s decision to strike down the move to set up a National Judicial Appointments Commission.
  • NJAC – It would have been responsible for appointments and transfers to the higher judiciary in place of the Supreme Court collegium. 
  • Procedural lapses – reports of delays in appointments have become increasingly commonplace, with both sides testy over the procedure. 
  • Binding – If the collegium reiterates the names, the court said that the government has no option but to appoint the judges. 

Way ahead

  • It is for the court to take an increasingly firm hand to ensure that the collegium system that it fought so hard to protect actually functions effectively. 
  • Vacancies in the higher judiciary threaten every aspect of the justice delivery system and it is the courts, and the government, that always take the blame for any shortfall in justice.
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