Herald View: Law Minister's reply to the Rajya Sabha on appointment of judges not convincing

It is difficult to conclude with certainty whether we have a dysfunctional government or a dysfunctional judiciary. Judging by a written reply to the Rajya Sabha this week by the Law Ministry, it would seem we are saddled with both. There is no earthly reason for delays in the appointment of judges to the higher judiciary. Dates of retirement of judges are known from the time they are sworn in. Rules do permit recommendations to be made six months in advance. There is a timeline too finalised in March, 2017 by the Supreme Court in the form of a Memorandum of Procedure, which allowed the Intelligence Bureau four to six weeks to furnish inputs to the Union Government.

The Centre was then expected to process the inputs within the next 12 weeks. But in January, 2021 the then Chief Justice of India S.A. Bobde pointed out that in several cases the Government was sitting over recommendations for over a year or more. In May this year, Justice Bobde again reminded the Attorney General that the High Courts were in a ‘crisis situation’ with forty percent vacancy of judges. In July the situation remains more or less the same. The Law Minister Kiren Rijiju’s written reply in fact rules out any time-frame for appointments. He repeated the old bureaucratic cliché that appointment of judges is a ‘continuous, integrated and collaborative’ process for which no time limit can be set. Without saying so in so many words, the Government has effectively rejected the Memorandum of Procedure but without really explaining why.

The minister’s reply provided no clue or comfort to the crisis. The 25 High Courts in the country continue to have 453 vacancies of judges. While successive Chief Justices of India have expressed their anguish over the Government sitting over recommendations made by the collegium, both the Supreme Court and the Government have maintained a studied silence on the vacancies in the apex court itself. No High Court judge has been elevated to the Supreme Court since November, 2019 when the then CJI Ranjan Gogoi retired. Several deserving Chief Justices of High Courts too have retired since then and lost out on the opportunity of serving on the Bench in the apex court. Chief Justice Bobde in fact retired with the dubious distinction of being the only CJI during whose tenure nobody was elevated to the Supreme Court.

As a result, even the Supreme Court continues to function with 27 judges, seven short of the sanctioned strength of 34 judges. Two more SC judges are retiring this year and three others are due to retire next year. What is more, at least two High Courts, including Calcutta, have Acting Chief Justices for a long time. Even more strikingly, the Law Minister admitted that the Government has not accepted even a single of the eight recommendations for appointment of judges in the Calcutta High Court. In contrast, it accepted all the 10 recommendations made by the collegium for the Madras High Court. Curiously, even the Parliament is not taken into confidence and explained the reasons. The judiciary does suffer from several infirmities and the number of judges may not be the most serious of them. But the obvious liberties and the time that the Government is taking should be of the deepest concern, especially when political considerations in appointments cannot entirely be ruled out. What the country needs is a more transparent process and procedure, a transparency that does not appear however to suit any of the players.