Concern of judiciary

The Chief Justice of India, T.S. Thakur has expressed his concern about the chronic shortage of judges and questioned the delay on the part of the executive in filling up vacancies in the high courts.

Cause of Delay in filling the vacancies

1. The executive and the judiciary are yet to agree on a fresh Memorandum of Procedure (MoP) for appointments to the superior courts.

2. The Union government, tasked with revising the MoP, is awaiting the approval of the Chief Justice and his senior colleagues for its draft proposals.

3. Constitution Bench that invalidated the laws relating to the NJAC conceded that the collegium process requires improvement.

Given that there are over 475 vacancies in the high courts, it is arguable whether so many judges should be appointed under a system that is going to be shortly dispensed with and, worse, considered inadequate and opaque.

Memorandum of procedure for appointment of judges as recommended by Government

After it quashed the proposed National Judicial Appointments Commission (NJAC), the Supreme Court’s Constitution Bench had, in December 2015, left it to the Centre to consult the CJI for drafting the new memorandum for appointments of judges to the higher judiciary. 

Main features of new memorandum of procedure (MOP) :

1. FOR THE first time, the government has sought to include “merit and integrity” as “prime criteria” apart from seniority for appointment of judges to the higher judiciary. 

The new MoP seeks to introduce performance appraisal as a standard for appointing chief justices of high courts and Supreme Court judges.

2. Another key change being sought by the NDA government pertains to appointment of lawyers and jurists as judges. The MoP states that up to three judges in the Supreme Court need to be appointed from among the eminent members of the Bar and distinguished jurists with proven track record in their respective fields.

3. Establishment of a permanent secretariat to maintain records. A permanent secretariat to be set up in the Supreme Court for maintaining records of high court judges, scheduling meetings of the SC Collegium, receiving recommendations as well as complaints in matters related to appointments.

4. It further states that a high court should not have an acting chief justice for more than three months, while awaiting appointment of a full-time chief justice by the Collegium. 

5. Advocating “fair representation” of all high courts in picking SC judges, the government has said preference should be given to the chief justices of high courts, keeping in view their inter-se seniority. 

6. In case a senior chief justice of a high court is being overlooked for elevation to the Supreme Court, “the reasons for the same (should) be recorded in writing”. At present, no records are put in public domain by the Collegium to show why a judge is not elevated to the Supreme Court despite his seniority. 

7. The Union Law Minister should seek the recommendation of the incumbent CJI for appointment of his successor at least one month prior to his retirement. 

8. A notice for vacancies of judges should be put up on the website of the high courts at the beginning of the year for appointments. A permanent secretariat for the High Court Collegium to process appointments.