In a light exchange during the discussion regarding the alarming rate of delay caused in appointment of judges, K.K. Venugopal, the Attorney General pointed out that the responsibility of inordinate delay in appointment not only solely rests upon the government but also on the collegium of High Courts and the collegium of the supreme court.
On 6th December, 2019, the Supreme Court by its judicial order expressed its concern over the delay in appointment of judges. In its 7 page order, the court stated that the rate of appointment of judges has depleted over the years and further observed that only 65 judges were appointed to the High Court. The court remarked that there are nearly 410 vacancies against the requirement of 1079 judges. The court also observed that the courts are functioning with nearly half of their sanctioned strength.
As per the existing Memorandum of Practice, the collegium of the supreme court and the respective high courts has to make recommendations for the appointment of judges prior to the 6 months of such occurrence of vacancies”. The Supreme Court in its order stated that the High Court’s collegia are yet to make recommendations for the 195 vacant posts. Apart from these, the candidates withdraw their names for the appointment of judges due to the delay caused.
The judicial order further stated that names recommended for the appointment to the various high courts are either pending with for the approval with the government or with the Supreme Court collegium. The court opined that at least the candidates who were approved by the collegium of Supreme Court & High Court and the Central Government must be appointed within six months. However the bench further added that it does mean that the other process can be carried out more than six months.
The court opined that the inordinate delay in appointment of judges would lead the failure of justice delivery mechanism. The Supreme Court on commenting on the time limit for the approval of the candidates for appointment stated that after the Supreme Court approving the recommendations the Union Law Ministry has to consider the same within 3 weeks whereas there is no time limit prescribed for the Prime Minister and President.
The court further had laid emphasis that the appointment of judges must be a continuous and integrated process in which the central government is an important consultee.
The Bench comprising of Justice Sanjay Kishan Kaul and Justice K.M. Joseph directed that the list vetted by the Attorney General should also consist of details regarding the date of recommendation forwarded to the collegium after consulting the State ministry and the time period between them, the date on which the Supreme Court cleared its recommendations and such other details.
On 17th January, 2020, when the matter was listed, there was a debate between the bench and the Attorney General K.K.Venugopal over the delay in appointment of judges. The Attorney General remarked that the delay in appointments were not only due to the central government but also due to the collegium of the Supreme Courts and High Courts. He added that during the appointment process of 213 candidates for the year 2019, it took nearly 119 days for the Supreme Court collegium to clear the recommendations after the same was received from the High Court. When the list was forwarded, the Department of Justice took 73 days to prepare the summary for approval. The central government took 127 days to consider the recommendations and it took 18days in total for the prime minister to approve, preside to sign off and for the notification of appointment.
Citing the Chhattisgarh, Jammu and Kashmir, Madhya Pradesh and Jharkhand High Courts, the Attorney General remarked that the collegium of the respective High Courts are yet to submit its recommendations even after 5 years of occurrence of Vacancies. He further added that when there is an adverse finding by the intelligence report against the candidate proposed and yet the collegium has recommended him again then the central government will have to take time to satisfy itself in order to agree with the findings of the collegium.
The Court remarked that there are two aspects needed to be considered in order to tackle the problem of delay in appointment of judges. They are the time period required to clear the recommendations and the proposal to the high court to make recommendations 6 months prior to the event of vacancies. When the bench questioned the attorney as to what stops the government to enact law with regard to the appointment of judges, the Attorney General pointing the NJAC Act, replied that the court would struck down any impressive law brought by the government with regard to the appointment of judges. He further remarked that the constitution provided only for the president to ‘consult’ the Chief Justice of India for appointment of Judges whereas now, the word ‘Consultation’ has been misinterpreted for ‘Concurrence’.
1. The Supreme Court came down heavily on the central government for causing inordinate delay in appointment of Judges to Supreme Court and various High Courts.
2. On comparing the appointments made during the previous years, the court observed that 115 Judges were appointed in 2017, 108 in 2018 and 65 in 2019.
3. The Court further observed that the total sanction strength of Judges is 1079, whereas currently only 669 judges are working in courts.
4. The Attorney General pointed out that the inordinate delay is also caused due to the collegia of the courts.
5. The court proposed a recommendation for the High Courts to recommend the candidates for appointment of Judges prior to 6 months of vacancies.
The Supreme Court while observing that the 25 High Courts are yet to make recommendations for the 195 vacant posts issued notice to the Registrar of the said High Courts calling them to file their replies on the reasons causing the inordinate delay in appointments. The bench posted the matter to 23rd March, 2020 for further hearing.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
1. Bar and Bench, Govt alone not responsible for delay in appointment of judges: Collegium also responsible, AG Venugopal to SC, https://www.google.com/amp/s/www.barandbench.com/amp/story/news%252Flitigation%252Fgovt-alone-not-responsible-for-delay-in-appointment-of-judges-collegium-also-responsible-ag-venugopal-to-sc, (Last Visited on 18th February, 2020)
2. The Hindu, Supreme Court flags delay in appointment of judgeshttps://www.google.com/amp/s/www.thehindu.com/news/national/judges-selected-by-collegium-govt-should-be-appointed-within-six-months-supreme-court/article30265576.ece/amp/ (Last Visited on 18th February, 2020)