Do You Want Courts To Come To A Halt? Supreme Court Raps Government

“Do you want justice and this institution (courts) to come to a grinding halt?”

Prime Minister Narendra Modi with Chief Justice of India Justice T S Thakur (Source: PTI)
Prime Minister Narendra Modi with Chief Justice of India Justice T S Thakur (Source: PTI)

The Chief Justice of India expressed his disappointment on Friday with the government’s lack of progress in clearing names sent to it by the Collegium for appointments to the higher judiciary.

Do you want the justice (delivery system) and this institution (judiciary) to come to a grinding halt? You sit on recommendations for four months and don’t appoint.
TS Thakur, Chief Justice of India

The apex court was hearing a public interest litigation case filed by Ashwini Kumar Upadhyay seeking direction for filling up judicial vacancies. Highlighting how courts are affected by these vacancies, the Chief Justice said that an entire floor in the Karnataka High Court remains locked due to lack of judges while the Allahabad High Court is functioning at half its capacity.

Arguing on behalf of the government, the Attorney General of India Mukul Rohatgi informed the court that 18 new appointments will be made over a span of 15 days but clarity over the much-debated Memorandum of Procedure (MoP) – the criteria based on which judicial appointments are made – will help speed up the process.

The old MoP is contrary to the NJAC judgment. The new MoP will help. The law provides that the new MoP should be finalised. But the government’s position is clear. There is no deadlock regarding judicial appointments.
Mukul Rohatgi, Attorney General of India

The Chief Justice observed that the MoP cannot be finalised due to lack of consensus between the Collegium and the government on the issue but this does not stop the government from finalising judicial appointments.

What are you expecting? Are you expecting a revolution? The MoP has nothing to do with judicial appointments.
TS Thakur, Chief Justice of India

The Chief Justice also asked the government to inform the court about the recommendations that the executive does not approve of. "The MoP business cannot halt appointments. If you don't like a candidate please inform us. We will look into the recommendations again," the Chief Justice said.

The division within the Collegium – the panel of Supreme Court judges which decides the appointment and transfer of judges – has been one of the main reasons for recommendations for final draft of the MoP going back and forth.

In December 2015, the Supreme Court had struck down the law to set up a National Judicial Appointments Commission (NJAC). The court had observed that “the Memorandum of Procedure (1999) provides for a participatory role to the judiciary as well as the political-executive” and this procedure “now needs fine tuning.”

The court had directed the government to draft a Memorandum of Procedure but with the final stamp of approval from the Collegium.

The apex court will now hear this public interest litigation on November 11.