During the last week, there have been three interesting developments relating to judiciary. The first: the Union Ministry of Law, turning down a proposal of a Parliamentary panel for increasing the retirement age of judges of High Courts and the Supreme Court. The second: another observation of a Parliamentary Standing Committee relating to reservation of for women as judges which was turned down as not permissible under the Constitution. The third: the disturbing claim by a lawyer before the Chief Justice of India that computers and telephones of judges and senior officials were under surveillance following a recent order allowing ten Central agencies to eavesdrop and penetrate the computer-held details.
The Law Ministry’s view is there was no proposal as of now to increase the retirement age of SC judges from 65 to 67 and of the HC judges from 62 to 65. The Ministry responded to the Parliamentary Standing Committee’s recommendation that raising the judges’ retirement age would help retain the existing judges, which in turn would help reduce both vacancy and pendency of cases in the short run. This is inherently fallacious.
In August 2010, the then Union Law Minister Veerappa Moily introduced the Constitution (114th Amendment) Bill in the Lok Sabha. The Bill, which sought to increase the retirement age of HC judges to 65, could not be taken up for consideration and lapsed with the dissolution of the 15th Lok Sabha. The Committee report had raised concern over the large number of vacancies of judges in the HCs. The Ministry countered that the appointment of judges in the SC and HCs is a continuous and collaborative process of the judiciary and the executive. “While every effort is made to fill vacancies expeditiously, vacancies keep on arising on account of retirement, resignation or elevation of judges and increase in judge strength,” the Ministry said. It further stated that the timeline for initiation of the proposals for filling up vacancies is rarely adhered to by the HCs.
As of now, out of a total approved strength of 1,079 judges in the 24 HCs, only 695 posts are filled. 35.5% of the posts are vacant. The Committee headed by BJP lawmaker Bhupender Yadav was of the view that to reduce pendency of cases, the existing vacancy positions of judges need to be filled immediately. As per the existing Memorandum of Procedure (MoP), the judge appointment proposal has to be initiated by a HC Chief Justice six months before the occurrence of a vacancy. Within six weeks, the Chief Minister/Governor has to recommend on the proposal received from the HC CJ; and within four weeks, the CJI/ SC Collegium has to recommend the proposal to the Law Ministry.
There has been some amount of clamour for reservation for women in the appointment of judges. With the ongoing demand for women’s reservation in the State legislatures and the Parliament, the Government of India, for the first time, has appropriately asserted that under the relevant provisions of the Constitution, there is no occasion for reservation on the basis of caste, class or gender.
The Law Ministry has disclosed that there was no proposal to introduce reservation for women in the higher judiciary. The Ministry’s response came on an observation of a Parliamentary Standing Committee that only six women judges have been appointed in the SC till date. The Committee recommended that the Ministry take suitable measures to include more women judges in both higher and subordinate judiciary. The Committee reiterated its recommendation in its eighty-fourth Report on Demand for Grants’ that the strength of women judges should be around 50% of the total strength. The Ministry holds the correct view that judges are appointed in the SC and HCs as per Articles 124 and 217 of the Constitution, which did not provide for reservation for any caste, class or gender.
The Government has, however, been requesting the HC CJIs that while sending proposals for appointment of judges, due consideration be given to suitable candidates belonging to the SCs, STs, OBCs, minorities and women. While such requests have been made to ensure a fair representation for different sections of society in the higher judiciary, the Ministry said there is no proposal for amendment of Articles 124 and 217.
Whereas the first two relate to the Union Ministry of Law asserting the right legal position, it has been a matter of concern when the CJI is told in the open court that computers, telephones of judges are under surveillance by Government officials. Whereas the first two developments have a legitimate basis, the present accusation by a lawyer is definitely disturbing. However much we may condemn the improper use of PILs if the present allegation is true, it is a matter relating to the true independence of judiciary. Whatever may be said of the judiciary about its weakness at the crucial hours, it has risen to the occasion and, of late, delivered several judgments with far-reaching consequences in preserving and effectuating the Fundamental Rights under our Constitution.
A lawyer made a sensational claim before CJI Ranjan Gogoi that computers and telephones of judges and “very senior” officials are under surveillance following the December 20 order allowing 10 Central agencies to snoop on people. Advocate ML Sharma sought an early hearing of his PIL petition challenging the Government’s notification as violation of the Fundamental Right to privacy. CJI Gogoi first asked Sharma whether he had filed the PIL, and, if so, to pass over the case number. The CJI said the case would be listed in due course if filed. The CJI then enquired of Sharma whether he had paid a fine of Rs 50,000 which the court had previously levied on him for filing a frivolous PIL in a separate case. Sharma said he had paid the fine the very day the order was issued. He said his intentions in the case were genuine and in public interest. A verdict of a nine-judge Constitution Bench had directed the Government to protect informational privacy of every individual. It had directed the Government to carefully and sensitively balance individual privacy and the legitimate concerns of the state even if national security was at stake. The December 20 order allows ten Central agencies, from the Intelligence Bureau to the Central Board of Direct Taxes to the Cabinet Secretariat (RAW) to the Commissioner of Delhi Police, to intercept, monitor and access to “any information” generated, transmitted, received or stored in “any computer resources”. The Government order is based on Section 69(1) of the Information Technology Act of 2000 and Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.
All these three issues are a matter of concern for all. There is hardly any justification to enhance the judges’ retirement age. The vacancies have occurred not because of the retirement ages as such but because of the systemic failure in selection and appointment of judges of HCs and SC. Whereas the first two issues do not directly affect the independence of the system, the third one gives rise to concern among the citizens. The order for enabling snooping is prone to be abused to the peril of our democracy. It is, therefore, inevitable to curb this tendency through judicial action as the Government by and large is prone to disregard the right to privacy of citizens. The average citizen is assured with the affirmation of the view in the first two issues. The third one relating to independence of judiciary may have to be tackled by the judiciary itself with support and assistance from eminent lawyers and jurists. It must be appreciated that all the three are matters of concern for all of us!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha.jayantdas@hotmail.com )