Need To Fix Timeline In Judges Appointments In The Constitutional Courts

India is the only country where judges are appointed by judges. This was not the intention of our founding fathers. They had given this power to the President who was required to appoint the judges in consultation with the Chief Justice of India. But now the situation is completely changed. As per the existing system, the Supreme Court collegium headed by the Chief Justice of India has the final say in the judicial appointments to the Supreme Court and the High Courts. Two senior-most judges of the Supreme Court also participate in the collegium proceedings while recommending the names of High Court judges. In the case of the appointment of a Supreme Court judge, four senior-most judges of the Supreme Court participate in the decision-making process along with the Chief Justice of India. The President of India, as advised by the government, can only ask the collegium to reconsider its recommendation once but if the collegium reiterates its recommendation the President will be bound to accept the same. The Constitution of India does not contain any provision of collegium system but the Supreme Court has created this unique mechanism on its own through the process of judicial interpretation in 1993 in the name of judicial independence. The Court has no power to amend the Constitution. This is the job of Parliament. Before 1993, the central government was very powerful in making judicial appointments to the constitutional courts. But now things have changed dramatically. However, the appointments of the judges are formally made by the President of India on the recommendation of the collegium and the proposals are processed through the Ministry of Law and Justice, Government of India. In the judicial appointments, the Union Cabinet does not come into the picture. These matters are handled by the Union Law Minister under the supervision and guidance of the Prime Minister who advises the President of India to approve the names of judges as per the constitutional provisions and business rules of the Government of India. As no timeline is prescribed by the Supreme Court in its judgments during which the central government is bound to clear the names of recommended persons as judges, this lacuna helps the central government to delay the judicial appointments if the government does not like such persons recommended by the collegium. The government cannot refuse to accept the recommendation of the collegium but it can certainly delay the appointment of the recommended person by using its numerous tactics. In 2014, the central government had punctured the appointment of Gopal Subramaniam, a brilliant lawyer, to the top court. Had his name been cleared at that time, he would have become the Chief Justice of India after a few years as per the seniority convention.

Unfortunately, the Modi government is the most arrogant in the political history of India. It has the least regard for constitutional practices, conventions, dialogue, and democratic systems. It does not listen to the dissenting voices. It has even surpassed Mrs. Indira Gandhi's government which was well-known for judicial supersessions and political arrogance. The Modi government's 'either my way or highway' approach is known to all. The Supreme Court has also failed to control this government on many occasions. The government follows many tactics to delay the judicial appointments. After receiving the names from the collegium, the government seeks inputs from the Intelligence Bureau and other administrative agencies which are fully controlled by it. And this process takes time or can take more time if directed by the political masters. Not only the High Courts but also the names of some Supreme Court judges were also delayed deliberately. Justice K M Joseph's appointment was also delayed for more than a year. The central government was not happy to process his name expeditiously because of some unknown reasons. The delay in appointments ultimately affects the seniority of the judges. This is indeed a bad practice.

Notably, the issue of delay in judicial appointments has always been a burning issue. Many constitutional pundits have expressed their concerns on this issue and suggested prescribing a timeline to clear the names of recommended persons but no efforts have been made by the government to prescribe any such timeline despite the suggestions made by the Supreme Court on a few occasions. Recently, in a newspaper piece Dr Abhishek Manu Singhvi, an elite senior lawyer, and a Congress Party's Rajya Sabha MP, expressed his genuine concerns about the delay in the judges' appointments in these words: "Each time the executive plays favorites qua lists of prospective judicial appointees, exercising its powers of delay—examples of Justices K M Joseph and Akil Kureshi being only two out of many—judicial independence is compromised. Whenever the collegiums fail to immediately and within days reiterate its original recommendations, it allows the executive to go scot-free and emboldens future aberrations, apart from causing irreversible prejudice to the victim and sends a clear negative message to others exercising independence. The judiciary's unassailable weapon that a reiterated recommendation has to be implemented, without executive discretion, should never be forgotten. A single contempt notice to the law secretary (alas never exercised) for the many motivated delays in clearing a reiterated recommendation would magically change perceptions." (Hindustan Times, December 30, 2020).

Dr. Singhvi's above-mentioned suggestion to issue contempt notice seems impractical to me. It is not so easy to exercise contempt power in these kinds of administrative matters. What will the Supreme Court do if the law secretary files an affidavit before the Supreme Court and states that the matter is pending on the table of the President of India? Can the Supreme Court issue mandamus to the President to clear the appointments? I do not think so because the President holds immunity from the judicial proceedings as per Article 361 of the Constitution and the Court cannot direct him to clear the names of recommended persons. The President himself signs the warrants of appointment of the judges. The Court can only direct the government, not the President of India. So, the contempt notice is not a solution at all. These kinds of issues should be handled by the Chief Justice of India on the administrative side of the Supreme Court in consultation with the Attorney-General who can convey the views and concerns of the CJI to the Union Law Minister and the Prime Minister. The CJI can also write letters to the Union Law Minister and the Prime Minister to expedite the judicial appointments or can discuss these issues personally with them.

Needless to say, the delay in the judicial appointments should be avoided. We need more judges in the High Courts as hundreds of vacancies are there. The Central Government should honour the recommendations of the Supreme Court collegium and should not sit on the recommendations for months or years. It should clear them timely so that the courts should act effectively. It should send the names back to the collegium for reconsideration if it has objections to some names. And if the collegium reiterates the names such appointments should be made without any delay. That is the clear message of the four Supreme Court judgments on the issue of judges' appointments and the government is constitutionally bound to act as per the judgments of the court. The judicial appointments need to be made timely given the pending arrear of cases in the courts in the country. A mutually-agreed timeline should be prescribed to clear the judges' appointments expeditiously.

Views are personal.

(Author is a practicing Lawyer at the Supreme Court of India)