New Delhi, Aug. 12: The Supreme Court today fired a thunderous shot across the Centre’s bows for stalling the appointment of judges, saying the delay could “shut down” the courts and threatening to break the “logjam” through an unparalleled judicial order.
“High courts are functioning at 44.30 per cent of their sanctioned strength. Things have come to such a pass that a person has completed his life term before the court can hear his case,” Chief Justice T.S. Thakur told attorney-general Mukul Rohatgi.
“You can’t bring the situation to a stage where courts are shut down. Don’t force us to pass orders to remove this logjam,” the Chief Justice added.
Judges are appointed on the recommendations of a Supreme Court collegium, which are administrative decisions. Never before has the apex court threatened a judicial order making any recommendation mandatory so that a violation would invite contempt proceedings against members of the government.
Today’s remarks came against a backdrop of souring relations between the judiciary and the Narendra Modi government since last October, when a constitution bench struck down the proposed National Judicial Appointments Commission that would have given the executive a say in judges’ appointments and transfers.
Currently, the judges-only collegium recommends the appointments and transfers of high court and Supreme Court judges, with the government only allowed one request for reconsideration per recommendation, which must be accepted if the collegium reaffirms it.
Since the October verdict, sources said, the Centre had been sitting on collegium recommendations.
The apex court bench, which included Justices A.M. Khanwilkar and D.Y. Chandrachud, told Rohatgi that some 312 recommendations for appointments awaited government clearance (sources added that 40 transfers too were pending).
“We have sent back 78 names (after reconsideration); 234 are pending with the government…. This is totally unfortunate and is defeating the system,” the bench said.
“Don’t force us to ask where the files are... don’t force us to judicially intervene... don’t try to bring this institution to a grinding halt.… That’s not the right thing to do.”
Rohatgi admitted that “this sends a different message — a logjam” and sought time to “take up the matter at the highest level”.
The court was hearing a public interest petition moved by a retired army officer that sought ways to clear the backlog of cases through an improvement in infrastructure.
Justice Thakur said there were 478 vacancies in various high courts, and some were without chief justices. “In February, some judges were transferred and still they are not considered,” he said. “We think work should be withdrawn from these judges. Convey to those concerned (government).”
After the October verdict, the top court had as a concession asked the Centre to redraft the memorandum of procedure fixing eligibility criteria such as age and qualifications for judges, subject to the collegium’s approval.
Instead, the Centre has been sending queries to the collegium whether it can reject names of judges on grounds of “national security” and install a mechanism to hear complaints against judges.
“The government may be working on the draft memorandum of procedure but that did not give them the excuse to freeze appointments,” Justice Thakur said.
“If you have a problem with a name suggested by us, send the file back. We will look into it. This is some kind of a logjam and this whole situation is getting very difficult.”
He cited the recommendation for the transfer of Justice K.M. Joseph, the Uttarakhand chief justice, as the chief justice of Andhra Pradesh that the government has been stalling for more than two months. Justice Joseph had headed the bench that quashed President’s rule in Uttarakhand.
“This high court (Andhra) and most other high courts are working with only 40 per cent of their sanctioned strength and people are languishing in jail for 13 years for a hearing,” Justice Thakur said.
“In Allahabad, there is a pendency of over 10 lakh cases. Will you wait till the accused complete a life sentence?”