Thursday, September 23, 2021

Systemic overhaul

Both the Supreme Court collegiums and the central government appear to have disagreed quite frequently on the recommendations for judicial appointments during the past five years. Most of the disagreements appear to surfaced due to the political interference in these appointments from the right wing political party that is leading the coalition at the centre due to disregard for the set pattern on this issue. The centre has time and again made attempts to influence the appointments because it wanted to include its own favourites for filling up the vacancies in High Court and the Supreme Court across the country. The first differences on this issue appeared soon after the change in the government at the centre five years back when it wanted a separate set of collegiums to include non-judicial members on the Judicial Commission that was to be assigned the job for this purpose. Somehow, the full bench of the Supreme Court debunked the changes in the collegiums for various reasons that found favour and logic from the judicial fraternity. Unfortunately, it has become routine to hear that some recommendations for High Court appointments, as well as elevation to the Supreme Court, have met with disapproval from the government. In such instances, it requires reiteration by the collegium for the names to be cleared. This need not always be a cause for concern if it is a sign of some serious consultation on the suitability of those candidates recommended for appointments. However, it acquires the character of a controversy if the government’s objections suggest an oblique motive to thwart or delay the appointment of particular nominees. The latest development concerns Jharkhand High Court Chief Justice Aniruddha Bose and Gauhati High Court Chief Justice A S Bopanna, who were on April 12 recommended for elevation to the Supreme Court. The government had sought a reconsideration of the two names. The collegium has now repeated its recommendations, emphasising that there is nothing adverse against the two judges in terms of their ‘conduct, competence and integrity’ and that there is no reason to agree with the government. Under the present procedure and circumstances, the government is now bound to accept the recommendations. The Supreme Court is keen to fill up the current vacancies. It has also recommended two more judges, Justice B R Gavai of the Bombay High Court and Chief Justice Surya Kant of the Himachal Pradesh High Court, for appointment to the apex court. If all these four recommendations go through, the court will have its full complement of 31 judges from the existing strength of 27. If these recommendations are accepted, this will be welcome while some issues will continue to persist for the days to come. In systemic terms, the advisability of retaining the collegium system of appointments is a major concern; and in terms of process, the huge number of vacancies in the various High Courts and lower courts is another. The process of filling up vacancies depends on the relative speed with which the collegium initiates proposals for appointments and makes its recommendations after internal deliberations, and the time the government takes to process the names. It has been viewed with concern that all the vacancies in the High Courts across the country should be filled up at the earliest in order to clear the backlog of the cases that have been adding up due to shortage of judges. As on May 1, the total number of vacancies in all the High Courts is 396. It is true that the filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalise the process so that process for selection of candidates should start before the vacancies arise. The known inadequacies of the collegium system and the mystery over whether a new memorandum of procedure is in the offing are reasons why the proposal for a constitutionally empowered council to make judicial appointments ought to be revived – of course, with adequate safeguards to preserve the judiciary’s independence. Clearly the time may have come for a systemic overhaul of the process so that such a situation is not created.