Wednesday, February 8, 2023

A serious vacuum

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The stalemate over NJAC is having a deleterious effect on the vacancies of judges and additional judges in many high courts. This shows a serious deficit in the collegium system of appointments

By Vinay Rai

ON May 12, a Supreme Court five-judge cons-titution bench deferred the hearing of the Nat-ional Judicial Appoint- ments Commission (NJAC) case to June 8. Its interim order said: “As an interim measure, we direct the appointment of additional judges in high courts, already in office, to be continued for a period of three months or till the date of their superannuation, whichever is earlier, during the pendency of the matters in hand, till their disposal.”

The bench had no option but to do so, as there is currently a vacuum in the mechanism for appointing new judges, or confirmation of additional judges in high courts as permanent judges. The notification of the NJAC Act and the 99th Constitution Amendment Act on April 13 had effectively ended the collegium system of appointing judges.

But the new mechanism of appointing judges, which the NJAC Act had envisaged, has not begun to function because of Chief Justice of India (CJI) Justice HL Dattu’s refusal to participate in the selection process to appoint two eminent persons on the six-member commission. The CJI, two senior-most judges and the Union law minister are the ex-officio members of the NJAC.

To understand the interim order, one needs to understand how the current problem of extending the tenures of additional judges first arose. A look at the Memorandum of Procedure carried on the Department of Justice’s website shows that the problem was inherent in the collegium system of appointment, devised by the Supreme Court in the Second case (1993) and the Third Judges (1998) case.


For appointing judges to the Supreme Court, the outgoing collegium comprised of the CJI, four senior-most judges of the Supreme Court and the successor CJI, if he did not happen to be one of these five. The CJI was also expected to ascertain the views of the senior-most judge in the Supreme Court who hailed from the high court from where the person recommended came from. However, if he did not have any knowledge of the merits and demerits of the recommendee, then the next senior-most judge in the Supreme Court from that high court was consulted.

For the appointment of chief justices of high courts, the collegium consisted of the CJI and two senior-most judges of the Supreme Court.
The CJI was also expected to ascertain the views of the senior-most judge of the Supreme Court who was conversant with the affairs of the high court in which the recommendee was functioning.

The Department of Justice website shows the term of 11 additional judges will expire in May and June 2015. Their tenure will be extended due to the court’s May 12 order.

For appointment of permanent judges of high courts, an elaborate procedure was followed. When a permanent vacancy was expected to arise in any year in the office of a judge, the chief justice of the high court would as early as possible, but at least six months before the vacancy, communicate to the chief minister of the state his views on the persons to be selected for appointment. The chief justice of the high court was expected to consult two of his senior-most colleagues on the bench regarding the suitability of the names proposed for this purpose.

For appointing an additional judge as a permanent judge, the chief justice of the high court was expected to furnish statistics of month-wise disposal of cases and judgments rendered by the judge concerned, as well as the number of cases reported in the Law Journal duly certified by him. The information would also be furnished regarding the total number of working days, the number of days the additional judge actually attended court and the days he was absent from the court during the period for which the disposal of statistics are sent.


The proposal for appointment of a judge of a high court was initiated by the chief justice of the high court. However, if the chief minister desired to recommend the name of any person, he or she could forward the same to the chief justice of the high court. He would then send copies of his proposal to the governor, the CM, the CJI and the Union minister of law, justice and company affairs to expedite consideration.

The governor, as advised by the CM would forward his recommendation to the Union minister of law as early as possible, but not later than six weeks from the date of receipt of the proposal from the chief justice of the high court.

The Union law minister would then forward the recommendations along with other relevant material to the CJI for advice. He would, in consultation with the two senior-most judges of the apex court, form his opinion, after taking into account the views of the chief justice of the high court and judges there as well as the views of those judges in the Supre-me Court who were conversant with the affairs of that high court.

The CJI would, in the course of four weeks, send his recommendation to the Union law ministry with consultations recor-ded in writing.
It is this elaborate process of consultation laid down in the Memorandum of Pro-cedure for appointment of apex court and high court judges that has become extinct with the notification of the NJAC.


The May 12 interim order of the constitution bench, therefore, addresses the anomaly which may arise, if the additional judges in high courts are not confirmed as permanent judges before the expiry of their terms. The additional judges, under Article 224 (1), have a tenure of a maximum of two years. An additional judge may be confirmed as a permanent judge even before the expiry of his term.

As they aspire to be appointed as permanent judges before the expiry of their terms, it is in their interest that they do not suffer any break in their service record by virtue of the current vacuum in the mechanism to appoint judges in the higher judiciary.

Thus, even though the May 12 interim order is inconsistent with Article 224 (1) of the constitution, the Supreme Court has the powers under Article 142 to make such order as is necessary for doing complete justice in any cause or matter pending before it. The order is necessary in order to avoid palpable injustice that might have resulted in the case of additional judges, whose tenures are about to expire during the course of hearing of the NJAC case before the Supreme Court.

But the order also exposes the serious flaws in the outgoing system which led to this anomaly in the first place.
The Department of Justice website shows that the term of 11 additional judges—three in Gauhati High Court, seven in Bombay High Court and one in Patna High Court—are to expire in May and June 2015, and their tenures will be extended by three months by virtue of the Supreme Court’s May 12 interim order.

The tenures of more additional judges are likely to expire from September 2015, raising the specter of further anomaly if the present stalemate continues. The failure to appoint these additional judges as permanent judges well ahead of completion of their tenures points to a serious deficit in the outgoing system of appointments.

The Supreme Court, of course, is helpless in addressing another crisis which may arise because of the current stalemate, namely, the huge backlog of cases as a result of the number of vacancies.

According to the Department of Justice, there are currently three vacancies in the Supreme Court and 366 vacancies (as per approved strength) out of a total approved strength of 1,017 in the 24 high courts.

The number of vacancies may rise further with the Supreme Court likely to take three more months to deliver its verdict in the NJAC case, and with a few judges retiring in the meantime.

The number of vacancies, however, point to the complete failure of the collegium system of appointment of judges, even though the Memorandum of Procedure followed by the Department of Justice had laid down certain strict deadlines to be met before a vacancy arises.

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