The Centre is yet to revert on the Supreme Court collegium's recommendations for the elevation of two people to the Supreme Court. The collegium had recommended the elevation of Uttarakhand Chief Justice KM Joseph and Senior Advocate Indu Malhotra to the Supreme Court.
In terms of the Memorandum of Procedure, if the Centre declines to grant its approval for the elevation of a particular person to the apex court, it may send the same back to the collegium for reconsideration. However, if the collegium decides to not reconsider, then the person is confirmed as an appointee.
In this case however, the Centre is neither confirming nor rejecting the names proposed. In effect, it is exercising what is known as a pocket veto. The Memorandum of Procedure doesn't call for a time limit within which names have to be approved. What this effectively means is that the Centre is free to sit on a recommendation as long as it wants and effectively stall the procedure.
The Memorandum of Procedure, when finalised, did not contemplate such a pocket veto. However, in effect that is what is happening now. Pocket vetos exist in other parts of our constitutional scheme. For example, Article 111 of the Constitution mandates presidential assent to a bill before it becomes law. However, there is no time limit prescribed for such assent or veto to be exercised. So in effect, if the Centre is unhappy with a bill it can just decline to grant it assent. President Zail Singh exercised this veto concerning the Indian Post Office (Amendment) Bill.
However, when it comes to appointments to the judiciary, such pocket vetos cause significant problems. The High Courts of the country are woefully understaffed in terms of judges. Many are not operating at full strength. Lawyers at the Calcutta High Court are already on strike on the issue of the strength of the court. The sanctioned strength of the court is 77, but now it has only 33 judges.
Three judges are set to retire and two are to be transferred, but the Union Law Ministry has only cleared the names of three judges to replace the outgoing ones. Lawyers at the Gujarat High Court are also striking over the same issue.
Delays and pocket vetos by the Centre in clearing names seriously affect the administration of justice. The MoP needs to be revisited to avoid this problem, or the Collegium must consider dropping names when the veto is being exercised and suggesting alternative names. While the Collegium system gives the Collegium the final say on judicial appointments, in order for a democracy to function, there must be a healthy working relationship between the Centre and the judiciary when it come to the elevation of judges. That working relationship is lacking and it is causing the country serious problems.
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Updated Date: Apr 13, 2018 15:42:45 IST