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While discussing issues of judicial vacancies, the Supreme Court has emphasised that at least the appointment of judges who have been approved by the High Court and Supreme Court Collegiums, and the Central government, should take place within six months. In this regard, an order passed by Justices Sanjay Kishan Kaul and KM Joseph last week states,
“There may be an aspect as to whether the High Court collegium and the Supreme Court collegium with inputs from consultee Judges are on the same page or not – an aspect which can be looked into by the judiciary. There may be cases where Government sent back the names with the recommendation, an aspect emphasized before us.
However, in cases where the recommendations of the High Court collegium meets with the approval of the Supreme Court collegium and the Government, at least their appointments must take place within six months. This is not to say that in other cases the process should not be completed within six months.“
The Bench was dealing with a plea filed by a company, PLR Projects Pvt Ltd last October in the wake of a boycott by lawyers in Orissa. The litigant company has a case pending before the Supreme Court. Before the boycott was officially suspended last month, the Orissa High Court had initiated contempt proceedings against various Bar Associations in October, after which the Supreme Court also took critical note of the contumacious conduct of the striking lawyers.
In Friday’s order as well, the Supreme Court highlighted that the lawyers cannot bring the working of courts in Orissa to a standstill, citing the demand for creation of more High Court Benches. The Bench remarked
“Even if that is a grievance, it cannot bring the working of the district courts to a standstill. We fail to appreciate as to how there is a proper atmosphere to create a Bench when even work at district level is not taking place. The creation of a bench of the High Court is a question to be examined by the High Court but in this atmosphere there can be no question of the same or rather should not be examined till such time as the advocates in these districts get back to normal work.“
The Court then proceeded to deal with allied issues, including concerns that judicial vacancies across High Courts were not being filled up expeditiously. The Bench noted that the High Court should ideally initiate the process of filling vacancies at least six months in advance. After perusing a brief submitted by Attorney General KK Venugopal on the larger issue of judicial vacancies, the Bench observed,
“It has been stated in the brief that as per the Memorandum of Procedure (MoP), timelines have been set to facilitate filling up of vacancies of Judges. This requires initiation by the High Court collegium. The process should be initiated atleast six months in advance. Thereafter six weeks time is specified for the Governor/Chief Minister of the concerned State to send the recommendation to the Union Law Minister whereafter naturally the brief has to be prepared forthwith and send to the Supreme Court collegium for which the time specified is four weeks.
On the Supreme Court collegium clearing the recommendees, the Union Law Ministry has to put up the recommendations to the Prime Minister within three weeks who would advise the President on the appointment. No time limit has been prescribed for action by the Prime Minister and the President….
There is no doubt that the collegium of the High Court are vested with the important responsibility to make recommendations six months in advance and needless to say that the responsibility must be fulfilled qua the pending 197 recommendations to be made.“
The Court also took critical note that the number of judges recommended to fill vacancies have fallen this year, and is likely to compound issues of case backlog in the coming years.
“In 2019, only 65 Judges to the High Courts were stated to have been appointed as on 2.12.2019 as against 115 in 2017 and 108 in 2018 and, thus, there is little doubt, keeping in mind the retirement discussed in the last order, that we would have less High Court judges adoring to the Bench on 1st January 2020 than on 1st January 2018!“
The Court proceeded to opine that the solution to this larger issue should start with micro level analysis.
“We are, thus, confining ourselves at present to the aspect of 213 names pending with the Government/Supreme Court collegium”, the Court informed.
Accordingly, the Bench has directed that tabular data on these pending 213 names be submitted to the Court so that the same can be analysed. The information sought for includes the dates on which they were recommended, the time taken to forward these names to the government, the date on which the Supreme Court Collegium cleared the names, and the dates on which the warrants for appointment were issued.
The Court added,
“We are only desirous of making a small beginning as the filling up of vacancies in the subordinate judiciary being expedited through judicial proceedings before this Court is bound to result in greater flow of cases before the High Court and the High Courts would feel themselves highly inadequate with most of them working around 50% of the strength to deal with this additional flow. This would create a judicial jam at the level of the High Courts. This is our concern as we have found in the example of Orissa High Court. The consequent inability to deal with the cases promptly also generates the dissatisfaction among the litigants and the lawyers.“
The matter will be taken up next on January 10, 2020, on which date the Bench has stated that different aspects will again be debated.
[Read the Order]