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Pendency A Direct Result Of Centre's 'Recalcitrant Attitude' In Not Appointing HC Judges For Years After Collegium Clearances : Supreme Court
LIVELAW NEWS NETWORK
9 Aug 2021 7:46 PM IST
The Court urged the Centre to follow the time-line laid down by it for judicial appointments in its April 2021 order.
The Supreme Court has once again expressed exasperation at the delay on the part of the Union Government in filling up the mounting vacancies of judges in High Courts across the country.In an order passed on Monday(August 9), the Top Court observed that the "recalcitrant attitude" of the Government in not appointing High Court judges even years after the Supreme Court collegium has cleared...
The Supreme Court has once again expressed exasperation at the delay on the part of the Union Government in filling up the mounting vacancies of judges in High Courts across the country.
In an order passed on Monday(August 9), the Top Court observed that the "recalcitrant attitude" of the Government in not appointing High Court judges even years after the Supreme Court collegium has cleared the recommendations is causing delay in adjudication of cases.
A division bench comprising Justices Sanjay Kishan Kaul and Hrishikesh Roy made these serious observations while hearing a special leave petition filed against an interlocutory order passed by the Delhi High Court in a matter related to anti-dumping proceedings.
From the proceedings, the Supreme Court bench noted that the High Court is not in a position to give an early hearing for the case, as it is working at half its strength.
"We are facing the problem raised in these petitions on account of the recalcitrant attitude of the Government in not appointing High Court Judges for years together even where the recommendations have been cleared by the Collegium", the bench stated at the very beginning of the order.
The bench observed that the "real rub" is in the fact that the High Court does not find it feasible to accommodate such matters at an early date.
"This is the direct result of there being inadequacies of the number of High Court Judges including in the capital of the Country where the Delhi High Court is located", the Court noted agonizingly.
The bench further stated in its order that it put to Additional Solicitor General Madhavi Divan, who had appeared in the matter, that the recommendations take months and years to reach the Collegium and thereafter months and years no decisions are taken post the Collegium.
Therefore, the judicial institution of the High Courts is manned by a less number of Judges where it will become almost impossible to have an early adjudication even on important issues.
The bench also reminded the Union Government of the timeline for appointments suggested by the Supreme Court in its order passed on April 20 in the case M/s. PLR Projects Pvt. Ltd. V. Mahanadi Coalfields Limited & Ors. But this order does not seem to have moved the Government, the Court rued.
"Judicial institution is faced with this scenario despite timeline being laid down by the order of this Court in Transfer Petition (Civil) No.2419 of 2019 titled as M/s. PLR Projects Pvt. Ltd. V. Mahanadi Coalfields Limited & Ors. dated 20th April, 2021 which appears to not have moved the Government.
The result is that if there is some element of loss being caused by the inability of the judicial institution to take up matters, this is a direct consequence of there being inadequate number of Judges", the Court noted in the order.
To illustrate the woeful situation of High Courts, the order referred to the strength of the High Court at the national capital. Delhi High Court will be with less than 50% Judges in a week's time having only 29 Judges out of a strength of 60 Judges. To put this in context, the order stated that two decades back, when Justice Sanjay Kishan Kaul was appointed as a judge of the Delhi High Court, he was appointed as the 32nd judge out of a strength of 33 judges.
Given the situation of the Delhi High Court, the Supreme Court said that it is not in a position to ask the High Court to dispose the case in a time-bound manner.
"...the Government must realize that early adjudication of commercial disputes is the necessity for which there has to be adequate number of Judges which in turn would require them to follow the timelines laid down in M/s. PLR Projects Pvt. Ltd. (supra)", the Court urged.
453 posts(more than 50% of sanctioned posts) of High Court judges lying vacant : Law Ministry's response
Responding to a query raised in the Lok Sabha, Union Law Minister Kiren Rijiju informed recently that 453 posts of High Court judges are lying vacant. This means than more than 50% of the sanctioned posts of 1098 High Court judges are lying vacant.
The Law Minister also told the Lok Sabha that it was not possible to indicate the timeline required for filling up the vacancies as it was " a continuous, integrated and collaborative process between the Executive and the Judiciary".
What did the Supreme Court state about the time-line?
The Supreme Court has expressed exasperation at the delay in filling up of the mounting vacancies of High Court judges and has stressed on the need to complete the appointment process in a reasonable time-line.
In April 2021, a three-judge bench of the Supreme Court had passed the order in the M/s PLR Projects Pvt Ltd case indicating the time-line for each stage of the appointment process.
The court has laid-down the time-line as follows :
1. The Intelligence Bureau (IB) should submit its report/inputswithin 4 to 6 weeks from the date of recommendation of the High Court Collegium, to the Central Government.
2. It would be desirable that the Central Government forwardthe file(s)/recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/input from the IB.
3. It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly if Government has any reservations on suitability or in public interest, within thesame period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded
If the Supreme Court Collegium after consideration ofthe aforesaid inputs still reiterates the recommendation(s)unanimously (Cl. 24.1), such appointment should beprocessed and appointment should be made within 3 to 4weeks.
A bench comprising Chief Justice of India SA Bobde, Justices Sanjay Kishan Kaul and Surya Kant observed that it will be 'advisable' to follow the above time-line.
"The High Courts are in a crisis situation. There are almost 40%vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength", the bench noted in the order.
The Attorney General for India KK Venugopal assured the Court on April 15 this year that collegium recommendations pending with the Union Government for over 6 months will be decided within 3 months.
In December 2019, a bench comprising Justices SK Kaul and KM Joseph had passed an order stating that the persons recommended by the High Court collegium, which are approved by the Supreme Court Collegium and the Government, should be appointed within 6 months.
Case Details
Case Title : M/s Indian Solar Manufacturers Association v. Solar Power Developers Association
Coram : Justice Sanjay Kishan Kaul, Justice Hrishikesh Roy
Citation : LL 2021 SC 365
