Attorney General KK Venugopal
Attorney General KK Venugopal
Litigation News

Govt alone not responsible for delay in appointment of judges: Collegium also responsible, AG Venugopal to SC

Shruti Mahajan

The Supreme Court today sought a report from all the High Courts on the status of judicial vacancies. This, after Attorney General for India KK Venugopal told the Court that the government alone was not responsible for the delay in appointments.

The AG added that the Supreme Court Collegium, as well as the Collegia of the High Courts, were also responsible for the inordinate delay.

The Supreme Court asked the Registrars of various High Courts to submit reports on the position of judicial vacancies, in an attempt to find a solution to the delay in filling the sanctioned posts.

Pursuant to the Court's earlier order regarding the status of recommendations made, AG Venugopal told the Court that during the appointment process in 2019, on an average, 127 days were taken by the Central government to process the recommendations after receiving inputs from the state Constitutional authorities.

As opposed to the same, the Supreme Court Collegium had taken 119 days after being in receipt of names recommended by the various High Court Collegia forwarded by the Ministry of Law and Justice. The Department of Justice took 73 days to submit the appointment summary for approval after receiving the names from the Collegium and being approved by the Law Minister, the AG submitted.

The last leg of the process, which includes approval by the Prime Minister, signing off by the President, and the notification of the appointment, took 18 days, the Court was told.

Commenting on the long period of time taken for processing the recommendations, Justice Sanjay Kishan Kaul, who was on the Bench with Justice KM Joseph, remarked that the position does not look good.

Venugopal submitted before the Court that the issue pertaining to vacancy and the slow paced clearance of recommendations is not an issue on the side of the government alone and the Collegium also shoulders the responsibility for the same, he hinted.

"Why question the government for taking about 100 days for clearing a name when the High Courts take five years in sending recommendations after vacancy occurs?
Attorney General KK Venugopal

Venugopal was referring to instances from Chhattisgarh, Jammu & Kashmir, Jharkhand, and Madhya Pradesh when the recommendations for filling up of vacancies were not made even five years after the vacancies had first arisen.

If an adverse report is sent by the intelligence agencies, and yet the same name is reiterated by the Collegium, Venugopal said that the government will also have to satisfy itself with the findings of the Collegium and cannot forward the file blindly.

The Bench suggested that there are two aspects that need to be considered in order to tackle the problem of vacancies. One is how the time duration required at each stage can be brought down, and second, whether it would be advisable to ask High Court Collegia to propose recommendations way in advance before a vacancy arises.

As on February 14, there are as many as 199 vacancies in 25 High Courts for which recommendations are yet to be made, the Attorney General told the Apex Court.

The Bench asked Venugopal what kept the government from bringing in a law for regulating the appointment process. Venugopal, however, replied that the same will stand struck down by the Supreme Court.

It was further argued by the AG that the original Constitution had provided for the President to make appointment in consultation with the Chief Justice of India and no primacy was given to the CJI. The word "consultation" was interpreted to mean "concurrence" by the Court, Venugopal argued.

"The government brought in a fair amendment but that was struck down by this Honourable Court."
AG KK Vennugopal, referring to the NJAC judgment
Justices Sanjay Kishan Kaul and KM Joseph
Justices Sanjay Kishan Kaul and KM Joseph

To this, the Bench replied,

"What prevents you (government) from bringing another amendment?"

After this light exchange, the Court proceeded to highlight the need for the High Courts to make proposals for judicial appointments from time to time in a continual process.

"We propose to impress the aspect before the High Courts that names be proposed in advance keeping in mind when the vacancy is scheduled to arise."

Supreme Court

Venugopal proposed issuing notice to the 25 High Courts, seeking responses on what is causing the inordinate delay. The Court, while fixing the next date for hearing on March 23, has sought a reply from the Registrars of the High Courts on the position of vacant judges' posts.

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