Last week, a three-judge bench of the Supreme Court of India headed by Chief Justice S. A. Bobde, and comprising Justices Sanjay Kishan Kaul and, Surya Kant laid down a timeline for the Central Government to approve the appointments of the High Court judges within a prescribed time in the case of M/S PLR Projects Pvt. Ltd. v. Mahanadi Coalfields Ltd. & Ors. This is an admirable initiative that will be helpful to avoid the problem of delay in judicial appointments that had become a headache for the collegium. It will protect the independence of the judiciary and will also strengthen the primacy of the Supreme Court collegium in judicial appointments. Before this order, the Central Government had made it almost a norm to delay the appointments of judges recommended by the High Court and Supreme Court collegiums, and the collegiums had no option but to wait for months and years. After this order, it will be very difficult for the Central Government to delay the appointments of judges as the new timeline fixed by the Supreme Court becomes the law of the land as per Article 141 of the Constitution, and now the Central Government will be duty-bound to follow it as per the mandate of Article 144 of the Constitution. In case of violation of these directions, the Court will have an option to initiate the contempt proceedings against the violators.
After three landmark judgments of the Supreme Court on the issue of judges’ appointments delivered in 1993, 1999, and 2015 respectively, now the Supreme Court collegium headed by the Chief Justice of India (CJI) and consisting of his senior-most colleagues has the conclusive power to appoint the judges of the Supreme Court and the High Courts. There are two kinds of compositions of the Supreme Court collegium. For the appointment of a Supreme Court judge, the collegium includes five senior-most judges including the CJI and for appointing a High Court judge, the collegium comprises three senior-most judges including the CJI. As per this practice, the Central Government has limited power and it is bound to act on the recommendation of the Supreme Court collegium. For appointing a judge of the High Court, the High Court collegium headed by the Chief Justice of the concerned High Court and consisting of the two senior-most judges of the High Court initiates the proposal and sends its recommendations to the Union Law Minister, concerned State Government, and the Supreme Court collegium for further process. Thereafter, the Central Government checks the antecedents of the recommended persons and sends its inputs to the Supreme Court collegium which takes a final decision by consensus. If the Supreme Court collegium approves the recommendation of the High Court collegium, it sends the recommendation to the Central Government to issue the formal warrant of appointment as per the constitutional provisions mentioned under Article 217. The President of India issues the warrant of appointment on the advice of the Prime Minister who gets inputs from the Union Law Minister.
As no timeline was prescribed in any judgment of the Supreme Court relating to the judges’ appointments, the Central Government had some scope to delay the appointment process to complete certain formalities like collecting necessary information through the Intelligence Bureau and other intelligence agencies. The government did not hesitate to delay the appointments of some persons who did not fall in line with its ideology or thinking. As a result of this tendency, the vacancies could not be filled up on time. Admittedly, around 416 vacancies of judges are lying vacant in the different High Courts in the country today. Due to this shortage of judges, many High Courts are facing huge arrears of cases and are unable to give speedy justice to the people. As per the data submitted to the Supreme Court, 45 recommendations for High Court judges’ appointments are pending with the Central Government for more than six months. Surprisingly, six names reiterated by the Supreme Court collegium a second time are also awaiting appointment. In addition to this, 196 recommendations are received that are under process with the Central Government for judges’ appointment to the different High Courts in the country. Around 220 recommendations for existing vacancies need to be made by the High Court collegiums soon. The Chief Justices of the respective High Courts have been asked to initiate the process to fill up these vacancies soon. In another case, the Supreme Court has also asked the Chief Justices of the High Courts to appoint ad-hoc judges to clear the arrears of pending cases till the regular appointments take place.
Notably, the issue of vacancies of judges in the High Courts came up before the Supreme Court during the hearing of a petition seeking transfer of a case from the High Court of Orissa due to the lawyers’ strike there. Finally, the Court gave the following directions to expedite the appointment process of the High Court judges: (1) the Intelligence Bureau (IB) should submit its report/inputs within 4-6 weeks from the date of recommendation of the High Court collegium, to the Central Government. (2) It would be desirable that the Central Government forward the file(s) recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/input from the IB. (3) It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly if Government has any reservations on the suitability or in the public interest, within the same time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded. If the Supreme Court Collegium after consideration of the aforesaid inputs still reiterates the recommendation(s) unanimously (Cl. 24.1), such appointment should be processed and appointment should be made within 3 to 4 weeks.
It would have been better if the Court could also have said something about the working of the High Court collegiums that start the appointment process of the High Court judges. This was very important to expedite the entire process. Ad-hoc judges cannot substitute the permanent judges. The High Courts should initiate the proposals well in advance before the retirement of judges. The Apex Court has timely laid down these directions to expedite the appointment process of the High Court judges in the country. It was much needed given the state of vacancies and arrears of cases in the High Courts. The Central Government had ignored this issue badly and the judicial intervention was the need of the hour. People need timely justice and both the judiciary as well as the executive should help people to get speedy justice. This is a collaborative process that should be undertaken to protect the collective interests of the judiciary. Now, the Central Government should include these directions in the Memorandum of the Procedure that guides judicial appointments. The timeline will also minimize the executive’s interference in judicial appointments. However, the collegium should also bring some more transparency and accountability in its decision-making process. No public authority can exercise powers without accountability.