By Shivam Kaushik
The Covid-19 pandemic seems to have derailed the already overburdened criminal justice system. On one hand while the virtual courts have proved to be a God sent opportunity and provided a solace to the litigants, the appointment and elevation of judges to the High Courts and Supreme Court seems to be struck in a traffic jam.
One of the reasons behind this is that the Supreme Court Collegium has not met for over two months. The last meeting of the Collegium was held on 20 April. As a result, reportedly appointment of 120 posts of judges is pending. The rationale behind this is that the process of shortlisting the names of people qualified for elevation as judges requires brainstorming in the Collegium which is not possible on video conferencing.
This extraordinary long gap between the collegium meetings has aggravated the vacancy crisis in the higher judiciary. As per the data released by the Department of Justice on 1st July 2020 – there are 389 unfulfilled vacancies of judges in the 25 High Courts across the country.
The Collegium recommends the names of judges eligible for appointment to higher courts to the Central Government. It is headed by the Chief Justice of India Justice S.A. Bobde and has four other senior judges of the Supreme Court including Justices Arun Mishra, R.F. Nariman, N.V. Ramana, and R. Banumathi.
Interestingly, the Collegium system does not find any mention in the Constitution of India and owes its genesis to two Supreme Court rulings popularly known as the Second Judges Case of 1993 and Third Judges Case of 1998. The system was put in place to protect the judiciary from executive interference. Prior to the Collegium system, the government used to appoint judges to higher judiciary.
According to the data available on the SC website, the last Collegium meeting took place on 20th April 2020. The meeting culminated in the appointment of judges in Karnataka, Telangana and Andhra Pradesh High Courts along with the appointment of three additional judges of the Calcutta High Court as permanent judges.
Since then, the website has uploaded only two more resolutions which have been cleared by the Collegium through circulation. The first one dated 27th April was regarding the transfer of Justice A.M. Badar of the Bombay High Court to the Kerala High Court. The other one, dated 12th May dealt with the elevation of a judicial officer to the High Court of Kerala. Supposedly both the resolutions did not require much deliberation.
The issue of lack of manpower in the High Court to tackle the flood of litigation is as old as the county itself. The Government and the Apex Court have time and again pointed finger at each other when it comes to fixing responsibility of the delay in appointment. Actually, it is the duty of the Collegium to recommend names for appointment to the government but the actual appointment is made by the government through the President. There is no fixed time frame within which the government is supposed to act upon the recommendation.
Moreover, if the government is not satisfied with the recommendation of the Collegium, it can send back the names for reconsideration. This process has led to instances of confrontation between the executive and the judiciary.
The blame game even spilled over in the courtroom when the SC tried to rap the government for taking too long in deciding upon the collegium recommendation. To this allegation the highest law officer of the country, Attorney General KK Venugopal retorted “Why is the collegium recommending fewer names when there are so many vacancies in the High Courts.”
The Collegium system of appointment has had its fair share of criticism. The Collegium system has been at the receiving end as being opaque, unfair and adhoc in nature. The Parliament in 2014 passed the 99th Amendment to the Indian Constitution to replace the collegium with the National Judicial Appointment Commission (NJAC). But NJAC and the 99th Constitutional Amendment were struck down by a constitution bench of the Supreme Court for assailing judicial independence.
Justice J. Chelameshwar, a sitting judge of Supreme Court in 2016 went to the extent of boycotting collegium meetings alleging lack of transparency in the appointment system.
