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Stalled appointments and why an MoP may not be the ideal solution

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That there exists some amount of friction between the Indian judiciary and the Indian legislature is far too evident. Dissatisfaction, always dangerous to simmer, burst out just over a week ago when the Chief Justice of India, TS Thakur, declared in open court that the government was not implementing the collegium’s recommendations with respect to appointments and transfers.

But what made the CJI’s outburst unprecedented was the fact that he took the names of two, sitting High Court judges to elaborate his point.

In fact, on that very day, CJI Thakur had also said that the Central government was sitting on a list of seventy-five names for appointments and transfer vis-a-vis different High Courts.

Refusing to take this lying down, Law Minister and senior counsel Ravi Shankar Prasad said that the government had a list of two-hundred and fifty names that were in the process of being cleared.

The Law Minister’s remarks may only partly have to do with what took place in the Supreme Court.  Last month, Congress leader Anand Sharma alleged that the current Modi government was blocking” the appointment of judges. Sharma was quoted as saying that the government is at loggerheads with the Supreme Court after the NJAC verdict in October last year.

Expectedly, ex-Law Minister Sadananda Gowda refuted this claim, saying that appointments are presently being made based on the existing “MoP”, even as the government prepares the new one. The MoP that Gowda was referring to of course, is the one that is now being claimed to be at the centre of the entire controversy. 

But more of that later.

One of the particularly interesting aspects of this entire debate is that it does not have any intrinsic support from the actual numbers involved. For instance, the table below compares the appointments made over a two-year period from May 2012 to April 2014 (when the UPA was in power) and May 2014 to May 2016, the two years enjoyed by the BJP government.

No. of Transfers3852
No. of High Court appointments157137
No. of High Court judges made permanent 121165
Elevations to the Supreme Court77

On the face of it then, the Congress-led UPA government has a lead of 20 as far as new appointments are made, but is 40 short of the BJP as far as making additional judges permanent are concerned. When it comes to the Supreme Court, there is no difference between the two governments. 

So which side is correct? 

In all probability, the truth lies somewhere in the middle, uncomfortably squeezed (and possibly ignored) between seemingly opposing rhetoric. And much of this, if not all, has to do with the impossibly opaque manner in which judicial appointments continue to be made in the country. 

To an outside, impartial observer, there is very little do indicate just when and why appointments are made. Take the specific cases of Valmiki Mehta and MR Shah JJ – why were the two transferred in the first place? And if they were in fact transferred, as CJI Thakur clearly states was the case, then why has the transfer not come through?

What are the political and procedural cogs that have to be turned for a transfer order from the Supreme Court collegium to come into effect? And, more significantly, how and why was the implementation of such an order stalled?

The complete absence of any guidelines on this regard, coupled with a strong (convenient?) code of omerta means that there is no real way of knowing the hows and the whys of judicial appointments. And as Murali has stated earlier,

“What transpires inside the closed doors of the Collegium invariably remains clandestine till a few senior scribes manage to access the details of elevations and transfers.”

Which is where the Memorandum of Procedure comes in.

A direct fall out of the NJAC judgment, the MoP gains some degree of legitimacy from the fact that both the government and the courts have to agree over the MoP’s contents. And in many ways, the MoP also streamlines the entire appointment process. 

For instance, the MoP for appointment of high court judges suggests that the Chief Justice is required to initiate the process of appointment at least six months before a vacancy is expected to arise. Another provision prescribes a maximum tenure of one month for an Acting Chief Justice. 

Predictably, this MoP has caused it’s own particular set of differences between the government and the legislature. In May this year, CJI Thakur returned the draft MoP, stating that certain provisions were “not in harmony” with the independence of the judiciary. A few weeks later, it was revealed that the government was pushing for “wider consultation” when it come to prospective elevations.

In many ways then, the MoP then is seen as a document that streamlines and rationalises the course of judicial appointments. Once it comes into play, the MoP will weed out the existing problems, offering a scientific, fair and transparent manner of appointments and transfers. 

Or will it? 

By placing blind faith in the Memorandum of Procedure, I fear we are committing the same mistake that was done with the NJAC, or even the Lokpal Bill: resting on the inherently unstable presumption that a codified law will be a solution by itself. 

That is as naive as it is dangerous, for it completely ignores the sheer number of permutations and combinations, loyalties, familial and political equations that are currently involved in the appointment process.

Worse, it presumes that an effective appointment process is one that results in more judges, more “feet on the ground”. After all, the more judges we have, the easier it would be to resolve pendency.

But is that really the case? 

Simply looking to fill up vacancies could well be a misleading target, as Alok Kumar Prasanna writes in this article. By equating more judges with a higher disposal rate, we are making a fatal mistake of over simplification. 

As Karnataka’s Additional Advocate General AS Ponnanna says,

“If you have a judge who disposes of one case a day, he will continue to get .. 50 cases. If, instead of this judge, you have a judge who is disposing cases speedily, the pendency will go down. So, the quality of judges must improve, and for that, the selection process must change.”

And perhaps it is this, this change of the “selection process” that ought to the point of focus. That this requires political will is a foregone conclusion; the larger question is whether the judiciary will reach a common meeting point.

(With inputs from Aditya AK)