The Big Picture- Judicial Appointments: Why Is It Still Eluding Solutions?
In a recent confrontation between the Centre and the judiciary, the Chief Justice of India T.S. Thakur criticized the actions of the Centre over the matter of appointments of judges in the higher judiciary and for trying to bring the entire judiciary to a grinding halt. After the NJAC law was struck down by the Supreme Court, it again asked the Government to come up with a Memorandum of Procedure in consultation with the Chief Justice of India for selection of judges. It has also been said that the government wants to achieve through the Memorandum of Procedure what it could not with NJAC.
However, several issues have erupted since then between the both the parties due to which no consensus has been reached so far. Some of the reasons are illustrated as follows:
- According to the Supreme Court, delays on the part of the government in clearing appointments to the higher judiciary are not being given enough attention.
- Poor litigants and under trial prisoners suffer the most because of judicial delay. There has to be a significant initiative to increase the strength of the subordinate judiciary.
- There are approximately 478 out of 1079 vacancies which are yet to be filled for High Court judges. This constitutes about 44.3% of the total sanctioned strength of the High Courts. Even after almost two years, judicial appointments have yet been in a gridlock.
- One of the biggest problems is the issue of “judicial dynasties” or collegium which prefers to appoint relatives, friends, former colleagues and juniors. There is a deep concern over this issue because it strikes at the very essence of merit and transparency in judicial appointments.
- In order to ensure national interest, Government wants to have the power to reject recommendations from collegium, whereas the judiciary opposes such a veto clause. This clause on right to reject a recommendation is opposite to the current practice where the Government is bound to accept a recommendation by the collegium comprising four senior most judges of the Supreme Court and the Chief Justice of India if it reiterates the same. Therefore, the Supreme Court collegium returned the draft of the revised Memorandum of Procedure to the Government.
The Centre and the judiciary need to collaborate on finding practical solutions like:
- Appointing more judges on vacant seats.
- 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 seniority of the judges. The appointments are still out of the purview of RTI Act.
The proceedings so far till now only show that there is no sincerity of purpose from either side i.e. executive or judiciary. Both need to iron out their differences in order to ensure smooth running of the system.