The confrontation between the judiciary and the Executive over delay in judicial appointments took a decisive turn on Friday when the court threatened to summon the Secretaries of the Prime Minister’s Office and the Department of Justice for “sitting” over the names cleared by the collegium. Rattled by the development, Attorney-General Mukul Rohatgi sought one last opportunity, assuring the court that he would consult the Centre and report back by November 11.
The court came down hard on the Centre after it set the adoption of a new Memorandum of Procedure (MoP) as a precondition to processing the names of judges sent by the collegium.
Observing that the Executive’s inaction was “decimating the institution,” the Chief Justice of India said that he expected more “positivity” from the Centre as several High Courts were languishing in severe vacancy crisis.
The Bench referred to the case of the Allahabad High Court and said the collegium had recommended 18 names for appointment as judges and the Government chose eight and now wanted to appoint only two. The CJI even cited Karnataka High Court as an example where courtrooms had to be locked as there were no judges to sit in them.
“You see, we cleared the files way back on February 4 this year. Tell us what is the progress,” said the Bench, adding it can ask Secretaries of the law Ministry and the PMO to appear before it.
“You (AG) call them, I want to hear them,” the CJI, who did not dictate it in the order, observed during the hearing.
The Attorney-General submitted that the National Judicial Appointments Commission (NJAC) judgment mandated that there should be a fresh MoP and tried to refer to the verdict. “If everything can be done without the MoP, why do you need the MoP in the first place,” Rohatgi said.
“Who said there is no MoP now...Appointments are being made now as per the old system... Our tolerant approach does not seem to be working. If you go on like this, we will re-convene a five-judge Bench and say that the Government will not be allowed to scuttle judicial appointments till it frames a new MoP... Do you want that,” the Bench said.
“If you (Centre) insist that the MoP be put in place first, then you should have made it clear at the start. If you have allowed 88 appointments to be made, you can’t insist now after the collegium has recommended and the entire process of Intelligence report is over,” it said.
The matter came up in a set of PIls heard by a Bench of Chief Justice TS Thakur, Justices DY Chandrachud and lN Rao.
“Nothing seems to be happening. You people are sitting over the files and you will not allow it to be cleared. We made recommendations almost three months ago. There are 14 such names in addition to 19 names that we recently cleared.
Who is the Secretary in the PMO and Department of Justice dealing with these files, we will call them here,” the court said.
The A-G responded by saying that in December 2015 the Supreme Court directed the Government to frame a new MoP to which the SC has not agreed till date. “Despite it, we have cleared 88-odd names for the High Court and four for the SC. There should be no deadlock but the direction of this court requires the MoP to be in place,” he said.
“We can understand if send back a name for reconsideration. We can look into it. But you are sitting over the names for months together. This is not done,” said the Bench.