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Delays In Appointment Of Judges Is Leading To A Collapse Of Administration Of Justice

The Supreme Court of India. (PTI Photo)

As per the Department of Justice, around 40% of slots for High Court Judges are empty. The Chief Justice of India, Justice N.V. Ramana recently stated that since May 2020, the Collegium has recommended 106 and 9 names for Judges and Chief Justices of High Courts respectively, of which only names of 7 judges and one Chief Justice have been approved by the government. According to the government’s earlier statements, out of the 416 vacant posts, recommendations have been made by High Court Collegiums only for 196 posts. 

There have also been instances where the Collegium may not have pushed an appointment due to objections by the government (as seen in Justice Kureshi matter) or transfer a Judge (like the case of Chief Justice Sanjib Banerjee). 

Justice Banerjee joined as Chief Justice in January this year and is due to retire in November 2023. When Directors of the CBI and ED can be given 5 years tenure, then why can’t he be given a minimum two-year term? In this context, his transfer is perceived to be punitive as alleged by the Madras High Court Bar Association.

In S.P. Gupta v. Union of India (First Judge Case), a seven-judge Bench of the Supreme Court held that transfer cannot be used as a threat or punishment to the judges.

In April 2021, a three-judge Bench headed by CJI Bobde passed a judicial order and fixed a period of 18 weeks within which the appointment of HC judges should ideally be completed. If the government is not complying with this Order, why is there no contempt action?

Senior Advocate Saurabh Kirpal has been recommended for elevation as a Judge of Delhi High Court after his name was deferred. As per the Annexure of the MoP (Memorandum of Procedure), details of the spouse and medical status of the candidate are to be given.  If Kripal had given any such details then only an objection to his sexuality or spouse could have been raised. However, as per a letter of the Ministry of Law and Justice to the Supreme Court in July 2017, the government can cancel a candidate’s selection on the grounds of “national security and overriding public interest”.

By passing the judicial Orders on the appointment of Judges, Apex Court has essentially altered the MoP. Six years ago, the Constitution Bench in NJAC matter directed the government to frame a new MoP but the Apex Court and the Government have failed to reach a consensus. Various stakeholders of the judicial system have acknowledged that delays in the appointment of Judges are leading to a collapse of the administration of justice. 

It is high time that the Supreme Court passes a new Judicial Order to notify new MoP which may consolidate previous directions and orders. It will ensure time-bound appointments and transparent transfers of High Court Judges.

Virag Gupta is a Supreme Court lawyer. The views expressed in this opinion piece are those of the author.

READ: Transfers Like Justice Sanjib Banerjee’s Aren’t Punitive. Or Are They? SC Collegium Must Clarify

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