Exclusive: Judges Appointment-A Ping Pong Game?Is Indefinite Sitting Over The Files Choking The Judicial System?

LiveLaw has been collecting data about the pending recommendation of names of persons for appointment as judges to different High Courts. The data collected about the High Courts of Allahabad, Mumbai ,Calcutta, Chatisgarh, Delhi, Gauhati, Gujarat, Jammu and Kashmir, Jharkhand, Karnataka, Madras, Madhya Pradesh, Punjab & Haryana and Tripura shows a very sad state of affairs regarding the status of appointment of judges to the High Courts.

For the Allahabad High Court, name of  Basharat Ali Khan Khan is pending with the Central Government since 04.04.2016 after recommendation of the collegium. And the name of Muhammed Mansoor is pending with Central Government since 16.11.2016.

For the Calcutta High Court, name of Mohammed Nizamuddin was initially recommended by Supreme Court Collegium, which was returned by Central Government on 11.11.2016. The collegium again recommended the name on 15.11.2016 and that was returned again on 01.03.2017. The Collegium reiterated the name once again on 07.04.2017 and the name is still pending with the Central Government. Similarly names of Samba Sarkar ,Sabyasaji Choudhary, RaviKapoor, Arindam Mukherji  ,and Sakya Sen were recommended on 04.12.2017 by collegium but still  the file is pending with the Central Government.  The Calcutta High Court is functioning at less than half the strength of sanctioned posts of 72, with 33 judges. So much so that Calcutta lawyers called for five days strike to protest delay in filling up of vacancies.

For Karnataka High Court, the name of Narendra Prasad is also pending with the Central Government for 11 months . Following a hunger strike staged by Karnataka lawyers for filling up vacancies, the Centre notified the appointment of five judges in Karnataka High Court. For Madras High court, the names of 9 persons including the name of  Subrahmaniam Prasad, who is a  Senior Advocate in the Supreme Court, are pending since 04.12.2017 with the Central Government.

Harnesh Singh Gill was recommended for appointment as Judge of Punjab & Haryana High Court on 06.04.2017 , the same is pending with the Central Government.

For Tripura, the name of Mr. Arindham Lodh was recommended by Supreme Court Collegium on 01.11.2017 and the same is still pending with Central Government .

Though the Central Government is bound by the recommendation of the collegium, there is no stipulation as to the time frame within which the collegium recommendations have to be considered.  It appears that the Central Government is making use of this loophole of lack of time-limit by sitting over files to defeat collegium recommendations. Similarly, there are many names pending before Supreme Court collegium and decision is not taken in a time bound manner.

The data collected by Live Law research team reveals that a staggeringly high number of more than 143 names are pending for judicial appointment. Most of such names are pending at the Government level, after clearance by the Supreme Court Collegium.

The names of persons recommended for Judgeship for various High Courts collected by Live Law research team are given in a chart below:

What Prevents CJI To Request The Union To Take Time Bound Decision On Recommendations?

The data shows that Governmental inaction is at a height when it comes to appointment of judges and filling of vacancies in the judiciary. In a country with enormous dunes of piled up cases and more number being filed every single day, what is it that we legitimately expect from our government? Isn’t the government aware of its crucial role in setting the justice delivery system in smooth functioning, with adequate number of judges to handle the work load?

The integrity of the judges is put to disrepute, because the common man, without understanding the huge pressure of workload on judges due to lack of adequate number of judges, attributes the case pendency to the effectiveness and attitude of the judges. This puts a former CJI to much stress, and that was what the nation witnessed when CJI Thakur failed to veil his emotions at a public function and had to dry his eyes, while speaking of the judicial workload. Imagine, the CJI of this country had to literally plead to the government to fill judicial posts and to appoint adequate number of judges. The Prime Minister Narendra Modi who witnessed the candid disclosure of feelings by the Hon’ble CJI, responded in his usual masterly style stating that he was not a person who would merely walk away from issues of importance; the Prime Minister assured that he would study the matter seriously and would find a way. All this happened in April 2016. The “way” is yet to be unraveled.

CJ, Thakur retired. Justice Khehar and after that Justice Dipak Misra took over the highest chair in the Supreme Court. None of them shared or expressed the concerns that Chief Justice Thakur did. Probably, the Chief Justice of India is over-stressed on matters that the whole nation has its eyes on, that judicial appointments might have taken a backseat priority. Still what prevents CJI to request the Union to take time bound decision on recommendations ?

Appointment To Supreme Court ; Case Of Justice KM Joseph And Sr. Adv. Indu Malhotra

The names of Justice K. M. Joseph and Indu Malhotra, Senior Advocate, have been pending with the Govenrment after their recommendations to elevation as SC judges by collegium during January 2018. Reportedly, the Centre is not favouring the elevation of Justice Joseph, and is objecting to his elevation for no reasons. However, the real reason for the objection is widely speculated as the Centre’s unhappiness over Justice Joseph rendering judgment against the Centre by quashing imposition of presidential rule in Uttarakhand in May 2016.  The artificial objection on seniority does not hold water, and appears to be an empty ruse to block the elevation of Justice Jospeh. Because, in the Third Judges Case it was categorically stated that merit was the predominant consideration for appointment as SC judge.  Where, therefore, there is outstanding merit, the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all India seniority list or in his own High Court- This was the pronouncement in ‘Third Judges Case’. It is clear from the Collegium resolution on January 10 that it is aware of his position in the all-India seniority list, and yet recommended him, in view of his “outstanding merit”.  (In this connection, also read “Judicial Appointments: Are Centre’s Claims On Lack Of Seniority Of Justice KM Joseph And Justice Surya Kant Valid?” )

Anyhow, to avoid a decision on the matter, the files are kept in a limbo. Live Law had earlier reported that the Centre’s response to recommendations of Justice Joseph and Indu Malhotra with act as litmus test to its reverence to judicial independence.

[Corrigendum: Three in the list of Calcutta High Court [Shampa Sarkar, Ravi Krishan Kapur, Aridham Mukherjee] have been appointed as Additional Judges in Calcutta High Court on March 8,2018]