There is no bar on collegium but the process may get kick start after new CJI takes over on Dec 3
GN Bureau | November 19, 2015
Early resolution of filing 400 odd vacancies in higher judiciary is possible soon. During Wednesday’s hearing on suggestions to be made to improve the collegium system of appointing judges, supreme court judge JS Khehar said “the government is a key stakeholder. It has a voice. We must make that voice follow certain principles and standards.”
This could mean that the government could suggest names for appointment as judges to superior courts under the existing collegium system. The centre urged the SC that the collegium as it existed today should be set in motion for the appointment of judges as nearly 40 percent vacancies in various high courts was creating problems in the disposal of cases.
"There are over 400 vacancies. There is an urgent need to fill up the vacancies," Attorney general Mukul Rohatgi said, citing a heavy backlog of cases in various courts. "We are conscious of it," Justice Khehar said, without further elaborating. The bench did make it clear that it has not put any bar on the collegium.
However, the whole process could be revived only after justice Tirath Singh Thakur (63 years) takes over as new chief justice of India. His appointment was formally announced on Wednesday. He will take oath on December 3. He will take over from incumbent chief justice H L Dattu who retires on December 2.
Meanwhile, the constitution bench, comprising justices Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel has entrusted the government with the task of framing a draft Memorandum of Procedure (MOP) for future appointments in higher judiciary after considering all suggestions on the issue.
The apex court's direction did face stiff opposition from senior advocate Gopal Subramaniam. He said "suggestions are welcome", but the executive cannot be allowed to draft even the draft memorandum. He referred to the judgement, striking down the National Judicial Appointments Commission Act and 99th constitutional amendment and said the prime reason for his objection was the endeavour to protect judicial independence and hence, the executive cannot be allowed now to have a role.
"You (Subramaniam) are jumping the gun. They are not going to issue MOP. Everybody is seeking transparency and there are no sides. Government also intends to make it transparent and broad-based. We are just taking their inputs as it is a very important stakeholder.
"We may or may not accept their suggestions. We have struck down their NJAC. You think we can't flick out a mere clause in their draft MoP. Nobody can interfere in the process. You are just assuming that this is fait accompli," the five-judge Constitution bench said.
Subramaniam, however, kept insisting on his arguments and also referred to the second and third judges case to highlight that the centre should be denied a role in drafting the MoP.
"Primary consideration of the suggestion must lie with the supreme court. Suggestions may keep pouring in, I am not averse to it. However, the final call needs to be taken by this court," the senior lawyer said.
Senior advocate Fali S Nariman also joined ranks with the AG in his submission that merit has taken a back seat and seniority was given priority.
The AG said there was a general feeling that there must be publicly-known criteria of appointment of judges in higher judiciary.
"Some eligibility rule or criteria must be laid down by this court. The question is what is the criteria which needs to be fixed. Today, the criteria is there or not, is not known to people. At the end of the day, if applications are invited, there would be nothing shrouded in mystery.
"Transparency can be achieved by inviting applications including nominations. Entry level is most critical. If that is good, judges who come here would also be good. That is from where the Supreme Court judges come from," the AG said.
"For transparency, you should have applications and nominations. These nominations must not be limited to collegium of the high courts, it should also incorporate other judges from HCs, Bar Council of India and even the government should be allowed to make nominations," he said.