LAST year, the Supreme Court struck down the Constitution (Ninety-ninth Amendment) Act, 2014 that enabled the constitution of the National Judicial Appointments Commission. The Court declared that the Collegium of judges would have exclusive authority to select candidates for appointment as judges of the Supreme Court and the High Courts.
There are as many people who criticised the judgement as there are people who supported the judgement. The judgement was remarkable for many reasons:
* While four out of the five judges declared the Constitution Amendment Act unconstitutional and upheld the Collegium’s exclusive authority, all five judges found that the Collegium method had its faults.
* The Court could not find a way to improve the procedure of appointment through the Collegium method and, therefore, asked the government to draft a revision of the Memorandum of Procedure (MoP)!
* The judgement that attracted the attention of scholars and legislators was not the majority view authored by Mr Justice Khehar (which was well-reasoned) but the dissenting opinion written by Mr Justice Chelameswar (which, borrowing the words of Mr Justice Hughes, was an “appeal to the brooding spirit of the law, to the intelligence of a future day”).
Law declared by SC
The judgement is the law declared by the Supreme Court (see Article 141 of the Constitution). The Collegium is no longer an idea or a proposal, it is the law. Not that the declaration of law cannot be changed, but until it is changed, it is the law and is binding on the government. This simple truth seems to have escaped the government.
I had strong reservations about the judgement and expressed them in my column of November 1, 2015. I had suggested how the Constitution Amendment Act (that had been struck down) could be tweaked to make it acceptable to Parliament, the Executive and the judiciary. Whatever be the reason, the government has not adopted that course.
There has been no attempt to re-draft the Constitution Amendment Bill, pass it in Parliament, and prepare for a test of its validity in the Supreme Court.
On the contrary, the government has used the opportunity of redrafting the MoP to engage in a battle of wits with the Supreme Court. The consequences of this ill-advised confrontation are painful, as I shall explain presently.
The Chief Justice of India has publicly expressed his anguish that the Collegium’s recommendations are ignored and appointments are delayed. There are three vacancies in the Supreme Court today and five more will occur before the first week of January 2017. Every bench of the court is loaded with 60 to 70 matters on Mondays and Fridays. Other days are no different because the cases on those days are listed for final hearing and disposal, the list is long, and is usually not completed by the end of the day.
Vacancies in the High Courts have reached alarming proportions. Out of the total sanctioned strength of 1,079 judges, only 601 are in place. In many High Courts, the proportion of vacant posts is nearly 50 per cent and in four High Courts, it is over 50 per cent. Every judge is carrying the workload of two judges. Workaholic judges sit up to 6 pm on many days. Where is the time to read legal literature, or the time to reflect, or the time to write judgements? In several cases, judgements are reserved and remain pending for more than a year.
The data on pendency is frightening:
Supreme Court: 62,657 cases
High Courts: 38,70,373 cases
It will take years to eliminate the backlog — that is, if it can be eliminated at all. The problem of pendency is so humongous that I cannot think of any system of ‘case management’ that would be able to bring the problem under control. Most judges have, therefore, given up: they discharge their duties conscientiously and dispose of as many cases as possible without worrying about the backlog.
Give up subterfuge
As vacancies accumulate, the task of filling those vacancies has become more challenging. If one or two vacancies in a High Court have to be filled every quarter, the task is manageable. If there are 82 vacancies in 160 posts (as in the case of the Allahabad High Court), how do you fill them in one go? How will you sort out issues of inter-se seniority among the lawyer-candidates? How will you ensure that the ratio between candidates from the Bar and the Bench (District Judges) is maintained at 2:1?
The casualty is justice. Cases are adjourned repeatedly. In the Delhi High Court it is difficult to get the ‘next date of hearing’ within three-four months; it is no different in other High Courts. Clients have to bear the cost of frequent adjournments (travel, lawyer’s fees etc). When a case is heard, it cannot be heard continuously. Fresh cases for admission get only a few minutes of hearing. Everyone, including the judges, has a sense of dissatisfaction and disappointment.
The government may be aiming at a ‘perfect’ MoP in which elements of the NJAC could be incorporated. The government must give up the subterfuge. The only way to assert Parliament’s sovereign right — if Parliament wishes to do so — is to enact a new Constitution Amendment Act that will pass muster. Otherwise, the government is obliged to present an MoP that is consistent with the letter and spirit of the judgement.
The standoff between the Collegium and the government is unacceptable because it will only accelerate the collapse of the justice-delivery system.