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At a time when pendency of cases has become a cause of concern, media reports recently quoted the Chief Justice of India as having stated in an open courtroom: “We are working on framing of a Memorandum of Procedure (MoP) but the process cannot be allowed to hijack the appointment of judges to high courts”. He reportedly went on to point out that are 478 vacancies in the High Courts ie 44.3 percent of the total strength of judges. He pointed out to the Attorney General Mukul Rohtagi that high courts have 4 million cases pending.  This will lead to a situation where, “by the time an appeal can be heard, the accused would have already served a life sentence”. He said, “The entire system has collapsed.”

According to reports the bench also said: “We won’t tolerate a logjam in judges’ appointment …it is stifling the judicial work. We will fasten accountability now. Why is there mistrust? If this logjam continues we will be forced to interfere judicially. We will ask for every file that was sent to you by the Collegium.”

Three days ago, according to reports in the media, the Law Minister had,  in his reply to a calling attention motion in the Rajya Sabha, stated that the government had been given the right to reframe the MoP in the Supreme Court’s judgment striking down the National Judicial Appointments Committee.

Earlier, The Indian Express had reported the government’s rejection of many recommendations for the MoP made by the Supreme Court Collegium.

Congress member Vivek Tankha had raised queries, wanting to know if an impasse had been created because of the government’s insistence on framing the MoP in such a way that the government gets the right to veto judicial appointments.

Several other members reportedly asked the law minister to revive the NJAC by getting the Parliament to “assert its supremacy” and pass the law. The law minister, however, said that the government had “humbly accepted the judgment”, although he cited names of judges appointed prior to 1993 by the executive who are regarded as excellent judges.

On July 10, The Indian Express had reported that the government had asked the Intelligence Bureau to carry out more stringent checks on the names recommended by the Collegium for action. According to The Express: “As part of this exercise, the recommendations made for elevations to the Allahabad High Court, Delhi High Court, Punjab and Haryana High Court and Chennai High Court, among others, are being ‘scrutinised more carefully’.”

The clause in the MoP which allows the government to reject any name on the ground of “national security” has been the most contentious.  Many feel that the IB check would be more than adequate to uncover such a flaw in a person, which would duly form a part of the report to the Law Ministry and the Supreme Court. To assume that the Supreme Court would appoint such a person is really doing a great disservice to the Supreme Court.

In a 2014 article in The Indian Express, Justice Rajinder Sachar had said about a provision in the then proposed NJAC: “The provision with regard to the appointment of high court judges, however, states, unacceptably, that the JAC is only required to elicit (emphasis added) the views of the governor, chief minister and the chief justice of the high court. I can hardly see any relevance of eliciting the view of the chief minister separately from the governor. I, however, take strong objection to reducing the position of the chief justice of a high court to merely eliciting his view. The advice of the chief justice of a high court as to the suitability or otherwise of a person to be appointed a judge of a high court should normally be accepted”.

Further, he had pointed out that the transferring of Chief Justices of High Courts is most unhelpful. He said: “I am amazed that, so far, a serious self-inflected injury is being overlooked — that is, appointing the chief justices of high courts outside their parent court. I have never understood the logic of transferring the senior-most judge, whose turn to head the court in which he has worked for almost 10 to 15 years, and with the functioning and lower judiciary of which he is most familiar, has come. To transfer him to a new court for a period of one or two years or even less, to which he is a total stranger and most likely unaware of the names of his colleagues, is strange. At present, one has the embarrassing spectacle of a chief justice being transferred to a state where he cannot even understand the language. The chief justice of a high court should be the senior-most judge of the same court. This alone will lend strength and dignity to the high courts.”

 This opinion of Justice Sachar seems to be premised on the understanding that the Collegium system is like an expert committee selecting technically qualified persons. The IB report is supposed to check for any personal unsuitability. At best the MoP could provide for greater transparency in the ongoing system, something that no one has opposed.

The French theorist, Montesquieu, had, in the 1700s advocated the theory of separation of powers. It has been followed in different degrees in different democracies.  The idea is to keep the executive, the legislature and the judiciary as separate as possible, given each country’s unique governance system, in order to prevent a totalitarian dispensation. To have a judiciary wholly under the thumb of the executive would mean that all executive decisions could conceivably go unchallenged.

India Legal Bureau


Lead picture: Chief Justice of India TS Thakur. Photo: Anil Shakya

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