No timeline can be set down for filling up of vacancies of the judges in the constitutional courts , Union law minister Kiren Rijiju told Parliament on Thursday, as he flagged that several high courts across the country are in breach of the six-month deadline for making recommendations for anticipated vacancies.
“Filling up of vacancies in the high courts is a continuous, integrated and collaborative process between the Executive and the Judiciary. It requires consultation and approval from various constitutional authorities both at state and central level. Hence, the time for filling up of vacancies of the judges in the higher judiciary cannot be indicated,” Rijiju said in his response to a question by Telugu Desam Party MP K Raveendra Kumar in the Rajya Sabha.
While every effort is made to fill up the existing vacancies expeditiously, the minister added, vacancies of judges in high courts do keep on arising on account of retirement, resignation or elevation of judges and also due to increase in the strength of judges.
To another question pertaining to judicial appointments by CPI(M) MP John Brittas, Rijiju pointed out that as on January 30, 25 high courts in the country have a shortfall of 333 judges as against their sanctioned strength of 1108. He, however, added that the high courts have failed in sending names within the timeline laid down under the memorandum of procedure (MoP) — the document which guides the judiciary and the executive with regard to judges’ appointments in the constitutional courts.
“As on January 30, recommendations in respect of 236 vacancies (191 existing and 45 anticipated vacancies during next 06 months) are yet to be received from high court collegium, which are in breach of six months’ advance timeline for making recommendation for anticipated vacancies,” emphasised the minister.
Rijiju also informed the Upper House that the Centre returned 18 proposals to the Supreme Court Collegium (SCC) pertaining to promotions of high court judges in the last three years, adding that the collegium reiterated and sent back files in six of the above cases while additional inputs were sought from the high court collegium in seven cases and names were returned to the high courts in the remaining five.
The law minister’s statements came amid an ongoing confrontation between the executive and judiciary over the judges’ selection mechanism and the division of powers between the two. The tussle, over the last few months, witnessed Rijiju and Vice President Jagdeep Dhankhar criticising the collegium system of appointing judges over concerns of transparency and assumption of authority by the Supreme Court through its judgments to appoint judges in the constitutional courts.
The top court, in a series of judicial proceedings, responded with reminders to the government that the collegium system is the law of the land that must be followed by the government “to a T”, while severely reproaching the Centre for sitting over a large number of collegium’s recommendations without specifying reasons.
On Thursday, Rijiju responded to a series of questions by Brittas and some other MPs regarding judicial appointments as he informed the House that 142 proposals recommended by the high court collegiums were at various stages of processing. “Out of these 142, 4 proposals are pending with the Supreme Court Collegium and 138 are under various stages of processing in the government,” he said.
At present, the Supreme Court, with a sanctioned strength of 34, has a shortfall of seven judges. “Out of these 7 vacancies, proposal for appointment of 5 judges in the Supreme Court is under consideration with Government and in the meantime, proposal for remaining 2 (two) vacancies has been received on 31.01.2023 from the Supreme Court Collegium,” Rijiju said, in response to another question by Aam Aadmi Party’s Raghav Chadha.
To a question by Congress MP Mukul Wasnik, the minister also mentioned that the government wrote to the CJI on January 6 this year, seeking the constitution of a search-cum-evaluation committee (SEC) for shortlisting suitable candidates who are eligible for being appointed as judges of the constitutional courts. “This, along with other measures suggested will pave the way for a more transparent, accountable and expeditious mechanism for appointment of judges to the constitutional courts,” added Rijiju.
Following the Centre’s letter on January 6, the Supreme Court collegium resolved to release detailed statements encompassing criteria of selection and the bouquet of considerations made by it while making the recommendations to the Centre. The resolutions made public by the collegium since January 10 also specified the objections raised by the government against the candidates and the reasons why the collegium was choosing to junk them.
In 2014, the NDA government passed the National Judicial Appointment Commission (NJAC) Act, proposing up an alternative system for appointment of judges to the constitutional courts with the government getting a greater say in the appointment process. But in 2015, the Supreme Court ruled that the law was unconstitutional as it sought to tinker with the independence of the judiciary.
The court’s pronouncement revived the collegium system – a method of judicial appointments evolved through three constitution bench judgments of the apex court between 1981 and 1998. Based on these judgments, the MoP was framed in 1999 to guide the judicial appointments under which the government can only object once if it does not agree with the collegium’s recommendations, but is bound by the decision after the names are reiterated.
MoP, however, is silent on the time within which the appointments have to be notified by the government.
