Pendency Begins Here 

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News: Recently, the Supreme Court (SC) expressed concern that many names cleared by the SC collegium were pending with the government for a considerable period.

However, the Union law minister told Rajya Sabha that the government has never deliberately delayed the process of judicial appointments.  

Status of judicial vacancies in India 

Around 35% of judge’s seats are vacant in the High Courts.

The most number of vacancies are present in the HCs of Patna (49%), Rajasthan (48%) and Calcutta (46%). 

What is the judicial appointment procedure in India?

(A) The Collegium System 

The collegium system was created through famously known as the Three Judges Cases (SC) 

The collegium comprises the chief justice of the court along with its senior-most judges. The collegium is constituted both at the SC level and at high courts.  

(B) Memorandum of Procedure (MoP) 

It is a collaborative framework between government and judiciary. It was prepared in 1998 pursuant to the Three Judges Cases. It largely governs the judicial appointment procedure in India. 

For appointment of HC judges:  

The HC collegium suggests names for elevation. The names travel through various departments of the state government, Intelligence Bureau and the central government. Then they are sent to the SC collegium for approval.  

The SC collegium considers the names. Then the final list is forwarded to the Central government for appointment.  

If the central government has any reservation, the names are sent back to the SC collegium for reconsideration. However, if the collegium deems that the recommendations are sound, it reiterates its stance. Then the Centre is required to make the appointment. 

Timeframe stipulated in the MOP for the appointment procedure: The Centre forwards the recommendations to the SC collegium within 4-6 weeks after receiving the report from the state government and IB. The SC collegium should submit the final list within 4 weeks to the Centre. The central government should put forth the list for President’s assent within 3 weeks. In case of reiteration of recommendations by the SC collegium, the final appointment should be made within 8-12 weeks. 

The Chief Justice of India mentioned that the notion of “judges themselves appointing judges” is a “myth”. The judiciary is just one of the players in the selection process. The judiciary has the first say in the selection process. However, the government has the final say.
What are the issues in the judicial appointment process? 

The stipulated time frame is not followed.

For example, in 2021, the government sent a list to SC Collegium after an average of 18 weeks after taking inputs from IB. Further, the SC collegium sent the final list to the central government after an average of 17 weeks. Further, an average of 41 days (6 weeks) were taken from the date of final resolution of the SC collegium to the appointment of judges in HCs.  

A lot of delay happens in appointment of judges whose names have been reiterated by the SC collegium.  

What is the impact of delays in appointment?

Such delays in the appointment process impact the number of vacancies and thus the pendency of cases.  

The delay in appointment despite constant reiterations by the SC collegium discourages potential candidates like senior lawyers from joining the judgeship.

For example, senior advocate Aditya Sondhi withdrew his consent for elevation to the Karnataka HC citing a delay of a year. 

What is the way forward?  

There is a need for devising realistic timeframes. It can be done using appropriate data. 

The collegium resolutions sent by HCs and some of the intermediary steps should be made public. It can bring more transparency about how much time is being taken by the collegium and the government.  

Source: The post is based on an article “Pendency Begins Here” published in the Times of India on 19th Apr 22. 

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