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Approach:  

  1. Introduction
  2. Very briefly mention the process of judges’ appointments.
  3. Mention the cases of delays with facts.
  4. Way forward & Conclusion.

A tussle between the SC collegium & the government has become the key feature of judicial appointments in India. SC had expressed concern that several names cleared by the collegium are still awaiting the government’s nod. This can compromise with the basic tenet of judicial independence.

The Collegium system was created through the Three Judges Cases. The collegium comprises the Chief Justice along with other senior-most judges both at the SC and HCs level. The procedure of appointments is largely governed by the Memorandum of Procedure (MoP) – a collaborative framework between government and judiciary – prepared in 1998, pursuant to the Three Judges Cases.

Many steps provided in the MoP are expected to be completed in a certain timeframe to ensure expeditious appointments. In 2021, SC provided additional timeframes for certain steps. The final appointments should be made within 8-12 weeks.

Ground realities: In 2020, the average time taken by government was 127 days (18 weeks) while the average time taken by the collegium was 119 days (17 weeks). Further the collegium recommendations of new judges between January 2021 to January 2022 took more than 7 weeks. Amongst the various names suggested, 77% were appointed, while 23% are still awaiting response in April 2022. The highest percentage of names pending before the Centre are in – Bombay (65%), Calcutta (47%) and Rajasthan (33%).

A bigger problem is that recommendations reiterated by the SC collegium have not been cleared yet by the government. 29 recommendations reiterated as of April 2022, are still awaiting government’s nod. A classic case is of Nagendra Ramachandra Naik (former CBI counsel), whose name was reiterated thrice by the SC collegium since 2019, but still the appointment is pending.

Such delays in appointments impacts not only the vacancies and pendency of cases, rather, it demoralises potential candidates, discouraging senior lawyers for joining the judgeship.

Devising realistic timeframes based on data can improve compliance. More transparency can be brought in by making public some collegium resolutions and its intermediary steps. This will also ensure public accountability to some extent. It is a settled fact that names reiterated by the collegium must be approved by the government; delaying this will only complicate the process & build tensions with the judiciary. The government may not have the first say in the judges’ selection process, but surely it is acquiring the final say – this must be prevented if judicial independence is to be preserved.

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