Saturday, June 25, 2022


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Since a couple of decades the appointment of Judges to the High Courts hasbecome a problematic and procrastinating exercise. Before the judgment of theSupreme Court in Supreme Court Advocates-on-Record Bar Association and othersv. Union of India[(1993) 4 SCC 441, popularly called as the Second Judges’ case,the Chief Justices of the High Courts and the CJI had played a counselling role in theprocess of appointment. The executive has wielded all the powers of appointing the Judges. With the passing of the judgment in the Second Judges’ case and in Special Reference No. 1 of 1998[(1998) 7 SCC 739] case the collegium system came into being. The recommendations of the Collegium for appointment of Judges to the High Courts and the Supreme Court became invariably binding on the executive. The collegium system also did not remedy the dogging ills. Neither the vacancies came to be filled up in time nor there has been expeditious disposal of cases, especially civil and criminal cases in the High Courts. The desired objects of the collegium system did not materialise. 

The collegium system came to be replaced by the creation the National Judicial Appointment Commission. In that regard, Article 124A of the Constitution came to be incorporated by amendment. Simultaneously, the National Judicial Commission Act is enacted. At that time there were more than 350 vacancies in various High Courts. Writ petitions were filed challenging the constitutional validity of the amendment of Article 124A of the Constitution and to the NJAC on the ground that it denudes the independence of judiciary, which is the basic structure of the Constitution.

The CJI did not show the needed concern for expeditious disposal of the writ petitions and they were mysteriously kept in cold storage for over 2 ½ months without being listed. The writ petitions involved serious constitutional questions. It was expected that the CJI should have presided the Bench to hear the writ petitions which he did not do. The CJI constituted a Bench consisting of two Judges presidedby Justice Anil R Dave. The counsel for the petitioners argued for a couple of days,however, they did not raise any objections regarding the disability of Justice Anil R Dave to hear the matter. When the matter was posted before the constitutional bench presided by Justice Anil R Dave in the second round the counsel for the petitioners raised objection that Justice Anil R Dave should not hear the case. For undisclosed reasons Justice Anil R Dave recused himself. Neither the CJI nor Justice Anil R Dave could be said to be disabled to hear the matter because both of them are the members of the collegium system and as well as the NJAC and in any way their power and participation for selection of Judges was not curtailed, yet Justice AR Dave recused. The constitutional bench presided by Justice JS Khehar was constituted.

Marathon arguments were canvassed. The Judges sacrificed their summer vacation and heard the matter during the vacation evidently showing urgency and concern to decide the matter at the earliest. The arguments came to be concluded by 10th July,2015. The bench, which showed urgency and concern while hearing the arguments, did not keep up the tempo to render the judgment expeditiously at the earliest by the end of July, 2015.

The government issued the notification on 13.4.2015 enforcing the NJAC Act. The bench hearing the matter had not given any stay order against the NJAC Act. When the CJI was invited by the Prime Minister to a meeting to select the eminent persons for the NJAC, on the untenable ground of pendency of case the CJI refused to attend the meeting. The legal presumption leans in favour of the constitutional validity of the NJAC. In the absence of any stay order there was no legal hurdle for selecting the eminent persons and no legal justification for the CJI’s refusal. The judgment is yet to be delivered. It is almost three months are over. The public are put to frustrating wait. The judgment in a case of national importance should have been rendered at the earliest. The Judges are virtually deciding their own cause as an exception to the rules of natural justice, enabled by the doctrine of “necessity”.

Order XX Rule I of the CPC lays down that judgments are to be delivered within one month after the conclusion of hearing and in exceptional cases not beyond two months. The Supreme Court in its ruling in Anil Rai v. State of Bihar [(2001) 7 SCC 318] has been very liberal in laying down the outer limit of six months for delivering the judgment by the higher judiciary, failing which the CJI can withdraw the case and entrust the case to some other bench. The ratio is unfair. The Judges of higher judiciary with their legal expertise and acumen should be able to render judgment in a lesser period of time of not more than a fortnight. Till the case is heard a Judge may require the cooperation of the lawyers, but after the conclusion of the hearing a Judge will have no excuse and only at his effort has to render the judgment.


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