The judiciary and the executive keep clashing over the collegium system for appointment of judges in higher judiciary, with the Centre alleging it to be “opaque and non-transparent” and retired and current chief justices and judges of the SC holding it as the best system. The two organs of the states have always been in a tug of war on this issue.
In order to replace the collegium system, the 99th Constitution amendment was brought and the National Judicial Appointments Commission (NJAC) was set for the purpose of recruitment, appointment and transfer of judges but the amendment was quashed by a constitution bench of the apex court in 2015 saying it was against judicial independence.
Pointing out that the Centre was not taking decisions on recommendation of the SC collegium for appointment in high courts and the apex court, a bench of Justices Sanjay Kishan Kaul and Abhay S Oka said that the Centre may not be happy with the apex court’s NJAC judgment but that verdict is the law of the land and has to be obeyed. “There appears to be unhappiness on the part of government because NJAC could not pass constitutional muster. That could not be the reason not to comply with the verdict. Some of the laws made by you are upheld by court. Some section of society may be unhappy with the verdict but can it be said that they will not follow the court’s verdict. This is the law of the land and it has to be followed by all,” the bench said.
The SC pointed out that its 2021 verdict setting a timeframe for authorities involved in the appointment process was not being followed and that the timeline has “gone haywire”, resulting in piling up of vacancies and delay in appointments.
The apex court had last year framed comprehensive guidelines for time-bound appointment of judges and a fixed time period for all authorities involved in the process to take decisions. It had said that the Intelligence Bureau (IB) should submit its report/inputs within 4 to 6 weeks from the date of recommendation of the HC collegium to the Centre, which should forward the file to the SC within 8 to 12 weeks from the date of receipt of views from the state and the IB. The Chief Justice of India thereafter must send recommendations/advise to the law minister within four weeks. The Centre must then make the appointment immediately or it can send the recommendation back for reconsideration, and, if the names are reiterated then they should be appointed within 3-4 weeks. The SC had passed the order as there was no timeline prescribed for the Centre to forward recommendations, resulting in inordinate delays in appointment of judges.
Expressing concern that its order was not being complied with, the bench said, “The order of the court has to be respected. The timeline has to be adhered to. Good people must join the bench and the timeline has to be adhered to unless there is an exception.. In some of the cases, the timeline has gone haywire,” the bench said.