Judicial appointments

Chief Justice of India TS Thakur on Sunday lamented “inaction” on the part of the Executive to increase the number of judges to handle the “avalanche” of litigations even as country’s Prime Minister Narendra Modi assured him of his government’s resolve in finding a solution. The problem is simply the lack of judges. The Chief Justice accused the Centre of sitting on 170 recommendations for judges to the High Courts. He said there are 434 judicial vacancies in the High Courts that are waiting to be filled. Since 1987, when the Law Commission had recommended an increase in the number of judges from then 10 judges per 10 lakh people to 50, “nothing has moved”, according to Justice Thakur. “The numbers when it comes to case pendency in India’s courts is mind-boggling,” according to a recent report in Scroll.in. “Five crore cases are filed every day – while only 2 crore cases are disposed of by the judiciary. That’s a backlog of 3 crore cases, every day.” However, the blame not only lies with the Executive. The current impasse is down to the Supreme Court’s decision to completely do away with the National Judicial Appointments Commission (NJAC) Bill in October 2015.

 Subsequently in December 2015, the court’s Constitutional Bench, left it to the Centre to consult the Chief Justice of India for drafting the new Memorandum of Procedure (MoP) for the appointment of judges to the higher judiciary. The Bench refrained from issuing clear directives to improve the Collegium system, but sought “broad suggestions for consideration”. Due to the stalemate over the NJAC and the subsequent procedure to draft the MoP, no judge has been appointed to the Supreme Court in over a year. In response to the apex court’s order, the Centre finalized the new MoP for the appointment of judges to the higher judiciary. The list of recommendations included in the MoP is wide-ranging. The stand out feature of the MoP is the opening up of the closed Collegium system of judicial appointments to greater public scrutiny. Whether the judiciary acts upon these recommendations is another question altogether. Among the key recommendations made, the Centre has sought to include “merit and integrity” as “prime criteria” for the appointment of judges to the higher judiciary, although seniority still stands as the main criterion. Other recommendations include public documentation of reasons why a senior judge was overlooked for promotion, the establishment of a permanent secretariat to maintain records pertaining to appointments and complaints against the same and the selection of three distinguished lawyers and jurists as apex court judges. For promotion to the chief justice of a high court, the MoP has recommended an evaluation of judgments delivered by the appointed judge in the last five years and the steps he/she took to improve judicial administration. Questions of “integrity” and “merit” remain vague without a detailed understanding of the MoP. Moreover, in a time when efficiency has become the name of the game, the judiciary still remains beholden to the standards of seniority. The Supreme Court collegium will respond next week on the revised MoP, Justice Thakur said on Sunday. 

Although the Collegium system did bring greater independence to the judiciary, the appointments made through it were non-transparent, and often riddled with allegations of nepotism. The system of checks and balances plays a vitally important role in ensuring that none of the three branches of government: executive, legislative and judicial can limit the powers of the others. Moreover, critics argue that recurring activism by the judiciary in matters under the direct jurisdiction of the Executive has disturbed the delicate balance of powers enshrined in the Constitution. Suffice to say, the NJAC Bill was overwhelmingly passed by both Houses of Parliament to reestablish the system of checks and balances and wrest some of its powers to appoint judges from the judiciary. Despite the force of the recommendations made in the MoP, it is incumbent on the higher judiciary to act and open itself up to a little more public scrutiny than usual. The apex court’s decision to strike down the entire bill disrespected not only the executive arm of the government but the very will of the people. The least it can do now is implement these recommendations and bring an end to the current impasse on judicial appointments. But to fix the long-standing problem of a lack of judges, greater structural reforms will be required. Will the judiciary pay heed to the calls for greater reform?  Without functioning courts, the government’s development agenda will come to a halt. How can industry and commerce thrive without a quick system of dispute resolution? A resolution to the problem is urgently needed.