Unlocking The MOP Lockjam

In our democracy, the final judges will be laymen like me, and all the millions like me, who don’t read that Constitution regularly, who don’t study all the interpretations of it and who may not even understand everything it says. We’ll be the judges of the effectiveness of the Constitution and the wisdom of the laws written under it and the integrity of your profession - Lee Iacocca

It was November 1996 when Chief  Justice P.N.Bhagwati made a momentous statement in his Law Day address, "I am pained to observe that the judicial system in the country is almost on the verge of collapse. These are strong words I am using but it is with considerable anguish that I say so. Our judicial system is creaking under the weight of arrears."

On 27^th  August  2017, as the newly realigned collegium of consisting of Chief Justice Dipak Misra, Justice Jasti Chelameswar, Justice Ranjan Gogoi, Justice Madan Lokur and Justice Kurian Joseph is poised to take over there is no cause for such alarm. But the Law Ministry’s Vacancy Statement July 2017 is certainly a cause for grave concern. Any vacancy on the bench is a strain on the judicial system which is to deal with the massive volumes pending an fresh cases.

Vacancy Statement July 2017

In the 24 High Courts across India, a pattern has been long playing out. There is  a huge shortfall in the number of judges. As against the approved strength of 1079 judges and working strength of 665 judges there are currently 414 vacancies. There are 78 vacancies in Allahabad High Court, 34 vacancies in Telengana High Court, 20 vacancies in the Bombay High Court, 38 vacancies in the Calcutta High Court, 22 vacancies in the Delhi High Court, 21 vacancies in the Gujarat High Court, 37 vacancies in the Punjab and Haryana High Court. This  is a fair enough sampling indicating the gravity of  the situation.

Even if one looks at the smaller High Courts, where the vacancies numerically does not attract attention, but in percentage terms, it reveals a significant shortfall. For instance, Chhattisgarh which has a working strength of 14 has 8 vacancies, Himachal Pradesh with a working strength of 8 has 5 vacancies, Orissa with the working strength of 18 has 9 vacancies.

MOP Lockjam

The lockjam on the contentious issue of the Memorandum of Procedure (MOP) which has stretched itself out for over 2 years is one significant reason for the vacancies.

MOP was a device adopted in the Second Judges case for effective implementation of the judgement. The Supreme Court vide its order dated December 16, 2015 in the SC Advocates-on Record case gave directions to the government to “ finalise the existing memorandum of procedure by supplementing it in consultation with the Chief Justice of India”. The MOP had to deal with the critical areas of a) eligibility criteria, b) transparency in the appointments process, c) secretariat, d) complaints and f) miscellaneous.

The National Security clause

But the government  incorporating the ‘national security  clause’ is a surprise element in the MOP. It is difficult to find in the history of judicial appointments a necessity for such a clause.  In March 2017, the collegium headed by Chief Justice J.S.Khehar had spelt out the Supreme Court’s objections. While conceding that the inputs of the government with regard to sensitive feedback would be welcome, it did not approve of a virtual veto under the said clause: “But the government cannot be given a virtual veto to reject any name by merely invoking national security. This would result in politicisation of the appointments process, something which the framers of the Constitution didn’t want.”

However, there is one  significant issue which is not being addressed in the MOP,  nor has it gained the attention of  the collegium and the government. There is the  long-standing demand to select  candidates from a wider talent pool  of lawyers.   United Kingdom has the option of applying for judgeship. A case in point is UK’s new lord Chief Justice Sir Ian Burnett who had applied for the position. One of the fears perhaps maybe the splurge of applications which is deterring this particular option.

The sooner the  resolution on the MOP the better The judicial system urgently requires adequate working strength to meet the mounting arrears. It is the constitutionally mandated responsibility of the government of the day for the effective administration of justice. As  Lee Iaccoca pithily said that it is the laymen who will ultimately be the judges of our judicial system.