Questioning if the Central government wants the entire judicial system to be “locked out”, the Supreme Court said today that it “cannot allow the executive to decimate the system” by what it called was its “inaction, inefficiency or unwillingness” to appoint judges.
Lashing out at the government for sitting over the files of judges’ appointments despite clearance by the collegium nine months ago, a bench led by Chief Justice of India T S Thakur said that the government can niether “scuttle the working of the institution” nor be allowed “to bring the entire system to a grinding halt”.
The bench told Attorney General Mukul Rohatgi that although the judiciary would not want a “clash” with any other institution, it was for the government to make sure such a situation is averted.
“This system of appointing judges (collegium) has worked well till date. We want this cordiality (with the government) to continue but we cannot allow the institution to be decimated by inaction, inefficiency or unwillingness of the executive.you cannot decimate the system,” the bench, also comprising Justices D Y Chandrachud and L N Rao, told the AG.
Hearing a clutch of PILs on shortage of judges and delays on the part of the government in making appointments, the bench got upset after Rohatgi put forth a list of names cleared by them since October 3.
The AG said 18 names had been cleared but appointments would take another two weeks. When asked by the CJI, the AG said out of eight names approved by the collegium for appointment as judges in Allahabad High Court, only two were cleared. This irked the bench which sought to know what caused the delay when the eight names had been recommended by the collegium in February.
“What about the remaining six names? You don’t make appointments nor do you send back the names if you have any objection. Who are the officials concerned? We will have Secretary, PMO; and Secretary, Justice Department summoned here and they will now have to explain the delay,” retorted the bench.
At this, the AG brought up the issue of the Memorandum of Procedure (MoP), which will guide future appointments after it is finalized by the judiciary and the government. Rohatgi pointed out that although one year has gone by, the MoP, in terms of the October 2015 judgment by a five-judge Constitution Bench, was yet to be finalized.
But the bench called this argument a “red herring” and clarified that until the new MoP is framed, appointments will keep happening on the basis of the old guidelines. It further reminded the AG that the government itself had declared that modification of the MoP had nothing to do with appointments.
“You have cleared 88 names after the judgment. Have you changed your mind now and want a deadlock in matters of judges’ appointments?,” it asked the AG, who replied that the government did not want a stalemate but the old MoP was not in line with the October 2016 judgment that had quashed the National Judicial Appointments Commission (NJAC) but favoured a new mechanism.
However, the CJI discarded Rohatgi’s argument, saying: “Let us make it clear to you that appointment cannot stop for want of a new MoP. You cannot bring the entire institution to a grinding halt by insisting on a new MoP. Where is the question of sitting over names? You have cleared two out of eight names (in Allahabad HC) while the second lot is still pending. You cannot do that. Ultimately, we are the casualty of this delay and inefficiency.”
When the AG said that the new MoP could fasten the process, the court said that if the government chose to stick to this argument then they would sit in a five-judge bench and declare it once and for all that new MoP cannot impede the process of judicial appointments.
“You cannot scuttle the working of the institution like this.are you waiting for some revolutionary changes in the system? It is not adversarial. It is not about ego of individuals. We don’t want to pass judicial orders in such matters. But this cannot go on like this. We don’t want to create a very bad situation where one institution has to clash with another institution. Please don’t compel us,” said the bench.
The court underlined that out of a sanctioned strength of 160 judges, only 77 judges were there in Allahabad High Court. “In Karnataka High Court, half the courtrooms are locked because there are no judges. There was a time when you had no courtrooms for judges and now most of the courtrooms are locked. You should very well have the whole institution.justice locked out,” it said.
The bench said that judges in the collegium were also human beings and they could make errors of judgments in recommending names for appointments but the government has to send them back with objections and not sit over them indefinitely, stalling the whole process.
With the writing on the wall, the AG pleaded for some time to enable him deliberate with the competent authorities and revert with positive updates after the Diwali break. The court then fixed the matter for November 11 when the government would adduce a fresh status of judicial appointments.