NEW DELHI: “You may as well close the court rooms down and lock justice out,” said the Supreme Court to the Union government on Friday, sharply scaling up the tussle between the judiciary and the executive over appointment of judges.
The acerbic barb was delivered in a scathing attack on the Central government for allegedly dragging its feet on appointing High Court judges despite receiving the recommendations of the Supreme Court Collegium long ago. A packed court room heard the Bench — Chief Justice T S Thakur and justices D Y Chandrachud and L Nageswara Rao — give a sharp ticking off to attorney-general Mukul Rohatgi when the latter implied that it was the apex court that was responsible for the delay.
Rohatgi stated the Centre’s position that the non-finalisation of the Memorandum of Procedure [MoP] is one of the reasons why appointments are held up. “There should not be any deadlock. You have committed to process the files for appointment of judges without finalisation of the MoP. Finalisation of MoP has nothing to do with the appointment process in the judiciary,” said the Bench.
The undercurrent of tension between the judiciary and the executive has been there ever since the apex court struck down the National Judicial Accountability Commission [NJAC] Act in 2015, which would have given a role to government nominees in the selection of judges. Instead the court stuck by the Collegium system, thought by many to be too opaque in a democracy, but with a Memorandum of Procedure. But there has been much toing and froing between the government in the finalisation of the MoP. Friday’s hearing laid bare the judges’ frustration.
“Overall we had made 18 recommendations but you are sitting on them. If there are problems with the candidates, tell us. Do not bring the judiciary to a grinding halt,” Chief Justice Thakur said when the attorney general informed the Bench that two of the eight names have been cleared already. He added, “First you select eight from the 18 recommendations and now from eight, you only want two? That’s strange?” The chief justice then referred to the shortfall of judges in various high courts and said, “In Allahabad HC, out of a sanctioned strength of 165, there are only 77 judges.
In the Karnataka High Court, an entire floor of courts is locked because there are no judges. Once we had a situation where we had judges but no court rooms. But now there are court rooms but no judges.” The Bench initially threatened to summon the secretaries of the PMO and the Law Ministry to appear before it with the relevant files. The attorney-general was told, “Our tolerant approach seems to be not working. If you go on like this, we will re-convene a five-judge Bench and say that the government will not be allowed to scuttle judicial appointments till it frames a new MoP. Do you want that?”
The MoP is your red herring. The government has repeatedly told us the process of finalisation of MoP will not stall judicial appointments -- Chief Justice T S Thakur.
Our tolerant approach seems to be not working -- Chief Justice T S Thakur