Going by the events of the past month, it looks like the Supreme Court is on a judicial crusade. Appointments to higher courts have received a much-needed push. A major shuffle of HC judges has happened, with 8 HCs getting new CJs. And the Central Govt. has had to face the court’s ire over our slowly-dying tribunals.
The crusade, if it really could be called that, started with the Collegium’s recommendation of 9 names for appointment to the top court— including 3 women, 1 SC and 1 OBC— all of which were quickly accepted. With this, the strength of the top court increased to 33 with just one vacancy pending.
Then, it followed this up by recommending 68 names in one go for elevation as judges of various High Courts. Of these, 44 are from the bar. And very recently, 16 more names have been sent for elevation to four different HCs.
Till the time of writing this, only 7 of the total 106 names sent for HC elevation since May have been accepted. According to the Department of Justice, there are a total 465 vacancies in 25 high courts of the country.
SC rebuke over tribunal vacancies
A few days after the Collegium sent the long list of HC appointments, a three judge bench led by the CJI came down heavily on the Central Government for sitting on Tribunal recommendations. The court has been hearing a plea against the new Tribunals Act which contends that it contains provisions identical to those that the SC struck down in July while adjudicating on the Tribunal Reform Ordinance.
In response, the government did make some appointments based on the recommendations of the search-cum-selection committee, but the top court slammed it again for “cherry-picking” names and making too few appointments. In that hearing, the court questioned the government’s manner of appointment for accepting the names of some waitlisted candidates in lieu of those who had been finalised by the committee. A questionable exercise, to say the least.
Meanwhile, in early August, the court confronted the Centre with a list of vacancies in each tribunal. According to it, around 240 posts for Chairpersons, Judicial and Technical Members are lying vacant in 15 tribunals across the country. The government, however, claims it has no names pending before it.
Having Judges Available
Having judges available to hear matters new and old is the first step towards ensuring access to justice.
Public trust in judicial institutions only plummets when access to these institutions is barricaded by a plague of vacancies. It is when people know any relief is years away, that they start to find ways to avoid courts, rather than engage with them. And there are indeed very valid reasons to avoid the formal legal system. Hidden and extra costs, long delays, slow and complicated procedures, the uncertainties.
The CJI has expressed a desire to “Indianise” our legal system to simplify its procedures and adapt it to “practical realities”, though it is yet to be seen how much of it is followed through.
Precarious times for polity
These are precarious times for the Indian polity, and actions of the Modi government demand accountability through confrontations on matters of public interest.
Judicial appointments to higher courts and tribunals is also a matter of grave public interest, but the procedures in place for these appointments demand cooperation between the judiciary and the executive.
To remind the reader, appointments to HCs and the SC are only finalised when the Law Ministry forwards the recommended names to the Prime Minister, who in turn advises the President on the names to accept.
Meanwhile, the search-cum-selection committee under the Tribunals Act 2021 has the CJI (or an SC judge nominated by him) as the Chairperson and secretaries to the Government of India as two of its members.
By introducing NJAC —which was struck down as unconstitutional, by denying and delaying the appointment of certain judges and by the provisions of the Tribunals Ordinance and then the Act, it is clear that the government is trying to grab as much control as it can over judicial appointments.
It only benefits the State when cases to which it is a party are not heard and decided in time. Remember the abrogation of Article 370, the Citizen Amendment Act and the three black farm laws. The legal validity of each of them is currently under judicial scrutiny. Why would the State want them resolved?
This editorial titled ‘SC Wants More Judges :On Top Court’s Appointment Marathon‘ has been written by Tushar Kohli and represents the collective view of the Editorial Team.