Vol. XL No. 46 November 13, 2016

Face-off between Judiciary and Executive on Appointment of Judges

Som Dutta Sharma

CHIEF Justice of India T S Thakur in an open court accused the government of trying to “decimate the judiciary and lock justice out”. Citing the case of the Karnataka High Court, the CJI said that one entire floor of courtrooms was locked up because there were no judges. In the Allahabad High Court, half of the sanctioned strength of 160 judges are lying vacant. In the Supreme Court, the number of judges is down to 26 out of a total sanctioned strength of 31 and two judges are due to retire this month.

The present face-off between the judiciary and the government on the question of appointment of judges to high courts and the Supreme Court was triggered by the strong words used by the CJI in August 2016 extending a veiled threat that the judiciary will be constrained to issue direction to the government, in exercise of its judicial powers, to clear the names recommended by the collegiums for appointment as judges. At an earlier occasion, the CJI had made an emotional appeal to the Prime Minister to clear the names sent by the collegiums for appointment of judges to high courts.

The present judicial strength in 24 high courts is 464, out of a total sanctioned strength of 1,079 judges. On October 28, the Attorney General, representing the central government, informed the bench headed by the CJI that the law provides for a Memorandum of Procedure (MoP) to be finalised before appointments are made. Thus, the government intends to stall the appointment of judges in various high courts despite the law minister and the government telling the judiciary that the process of finalisation of the MoP will not stall the judicial appointment process as asserted by the CJI.

Two aspects of this controversy need to be discussed. One is whether the government is serious about providing a justice delivery system capable of fulfilling the promise made by the framers of the Constitution to provide economic, political and social justice to the teeming millions of our people and secondly, what is the intention of the government to insist upon the MoP before accepting the recommendations made by the collegiums.

While celebrating 70TH anniversary of our democratic republic, it is our bounden duty to have a look at our justice delivery system to assess whether we have created a system capable of fulfilling our promise to ensure social, political and economic justice to our people, or not. Often-quoted figures of pending cases keep on mounting. One conservative estimate is that three crore cases are awaiting disposal in subordinate courts, 24 high courts and the Supreme Court. The cases pending in various tribunals viz. Central Administrative Tribunal, Debt Recovery Tribunal, Income Tax Appellate Tribunals and consumer forums are not included in the data.

The population of the country is more than 120 crores. The judge and population ratio is less than 13 per one million of population. International standard is 107 judges per million of population. In the US, judge strength is 107 per million; in the UK, it is 50 judges per million of population; in Australia, it is 42 for one million and in Canada, the judge-population ratio is 75 per one million.

An independent and efficient judiciary is sine qua non to the basic structure of our Constitution as asserted by the Supreme Court in umpteen number of cases.

The Supreme Court also laid emphasis on increasing judge strength from the existing ratio of 10.5 or 13 per 10 lakh people to 50 judges per 10 lakh people. The Law Commission in its report as far back as in 1987 had recommended to raise the strength of judges to 107 per million of population in next 15 years and to ensure number of judges to 50 per million of population by 1992. However, the then standing committee of Parliament headed by Pranab Mukherjee dealing with the subject had to make a fresh recommendation to bring the judge-people ratio to 50 per million. We are still at the level of 1987.

Infrastructure in the court houses is hopelessly deficient. Away from the metropolitan cities, judges write decisions by hand. The expenditure on judiciary in terms of our GNP is abysmally low. It is not more than 0.2 per cent. In Singapore, it is 1.2 per cent. The UK spends 4.3 per cent and the US 1.4 per cent. On two separate occasions, two Supreme Court judges stated that the government spends only 14 paisa on the justice delivery system out of every hundred rupees it spends. This shows the seriousness of the government about the problems faced by the justice delivery system. Alternative disputes redressal mechanism, fast-track courts and evening courts have proved to be ineffective. The resolution adopted at the Chief Justices’ Conference to employ retired judges to clear cases pending for over five years, if implemented, is likely to be proved non-productive. 



Prior to 1993, judges in the Supreme Court and high courts were appointed by the President of India on the recommendation of the government under Articles 124 and 217 of the Constitution. The collegium system of appointment of judges in high courts and the Supreme Court was brought in through a judicial verdict in 1993, which mandated that the opinion of the Chief Justice of India shall have primacy in the appointments. The decision also provided for the CJI to be assisted by two senior most judges of the Supreme Court. Thus, a collegium of three was put in place while interpreting the word ‘consultation’ appearing in Articles 124 and 217 of the Constitution. Subsequently, in 1998 while answering a reference under Article 143 of the Constitution, the Apex Court expanded the collegium from three to five. The collegium system has been a subject matter of public debate since 1993 and through this extensive debate, a national consensus emerged in favour of establishment of an independent national judicial commission.

The National Judicial Appointment Commission (NJAC) brought on statute book and the Constitution (99th Amendment) Act were quashed by the Constitution Bench in what is commonly known as the Forth Judges Case primarily on the premise that the enactment impinges on the independence of judiciary. Two parallel positions taken by the collegium of judges of the Supreme Court and the central government on MoP for ensuring transparency in the working of the collegium have brought the present impasse which throws a host of issues wide open for discussion.

Justice J Chelameswar, a sitting judge of the Supreme Court and member of the collegium, informed the CJI of his decision not to participate in the meetings of the Supreme Court Collegium till the highest judiciary ushers in transparency. Justice Chelameswar was a lone dissenting judge on the Constitution Bench which quashed the NJAC and the Constitution Amendment Act.

In fact, the collegium system was flawed on many counts including lack of transparency, non-existence of well-defined criterion for considering names and non-availability of any data on judicial performance and personal antecedents of the proposed names. For these and other reasons, the collegium system earned dislike of public and legal fraternity.

Howsoever flawed the collegium system may be, till a new constitutional framework is put in place in the shape of independent national judicial commission with power of recommending names to the President for appointment of judges to high courts and the Supreme Court, vested with the power to recommend transfer of judges from one high court to another and to inquire into the misdemeanor of any erring judge and recommend the action to the President, the central government is bound to accept the recommendation of the collegium. The government cannot withhold the recommendations on the pretext of finalisation of the Memorandum of Procedure. Cry of the people for quick justice brooks no delay in filling up of the vacancies in higher judiciary.

This brings us to the second aspect of the controversy that is what is the intention of the government in insisting upon the finalisation of MoP before accepting recommendations of the collegium pending with the government? The central government intends to incorporate in the Memorandum of Procedure a clause providing therein that the collegium consider only the names forwarded to it by a three-member committee of retired chief justices, thus appropriating to itself a right to circumvent the consideration by the collegium. This in essence means that the names before coming to the collegium shall be vetted by a committee appointed by the government. Another provision in the MoP which the central government wants to incorporate is its power to reject a name recommended by the collegium on the ground of national security. Track record of two years of functioning of this government shows that it wants to fill constitutional posts with the persons having RSS background. Take the case of governors and officers on special Duty (OSDs).

The position of the government in this controversy is unacceptable for the reasons that: (1) the proposals made by it run counter to the judicial verdicts of 1993 and 1998 which are the law of the land under Article 141 of the Constitution unless replaced; (2) howsoever unacceptable for various reasons, the collegium system unless substituted by a constitutionally valid law is to be followed: (3) the government on its own cannot push forward a Memorandum of Procedure without a public debate and Parliament’s nod; and (4) the judiciary and the government must function in harmony and not in conflict.