The problem of appointment of judges continues to vex the Indian State and its pillars of democracy. While earlier the clashes were between the different pillars (the executive and the judiciary), recent reports suggest that the courts might not have their own house in order either.
The tussle between the executive and the judiciary over who has primacy in the process continues as is made apparent in the case of Justice KM Joseph's elevation. Justice Joseph is the Chief Justice of the Uttarakhand High Court and was recommended for elevation to the Supreme Court by the Collegium. However, since then it has been widely reported that the Centre is not keen on giving its assent to Joseph's elevation. According to a Bar and Bench report, the issue seems to be limited to Joseph as the other recommendation made by the Collegium, of senior advocate Indu Malhotra — the first woman lawyer to be directly elevated to the Supreme Court from the Bar — faced no such resistance.
Incidentally, it was a bench headed by Chief Justice Joseph which, in April 2016, left the Centre embarrassed when it quashed the imposition of President’s Rule in Uttarakhand, The Indian Express reported. The court revived the Congress government of Harish Rawat, directing him to prove his majority on the floor of the House.
Furthermore, even within the judiciary there are multiple conflicts. In September 2016, The Hindu reported that Justice Chelameswar had stopped attending the Collegium meetings. He had already made his disdain for the Collegium system clear in the NJAC judgment where he had called the system “absolutely opaque and inaccessible both to public and history, barring occasional leaks.”
Even outside the Collegium, the law adds a fresh wrinkle to the appointment process as it introduces the concept of a "consultee judge". Consultee judges are judges of the Supreme Court who are consulted about judges and lawyers from the high court/s they have served when such names come up for elevation, according to The Print. While the opinion of the consultee judges is considered important, it isn’t binding on the Collegium.
This additional factor always had the potential to create conflict and it fulfilled that potential recently. According to a report in The Indian Express, two days after the Collegium recommended the appointment of Punjab & Haryana High Court judge Surya Kant to the Chief Justiceship of the Himachal Pradesh High Court, Supreme Court judge Justice AK Goel sent a letter to Chief Justice Dipak Misra putting on record his “respectful disagreement with the proposal”. Justice Goel is the consultee judge in this case by virtue of having served in the Punjab and Haryana High Court.
Justice Kant's appointment was against normal practice as he superseded his senior brother judge in the Punjab & Haryana High Court, Justice AK Mittal. This is not the first time Justice Goel sought to benefit Justice Mittal by his actions. In April 2017, when there was a proposal to appoint Justice Mittal as the Chief Justice of the Delhi High Court superseding Justice SS Saron, Justice Goel was in favour of the appointment even as two other consultee judges opposed it in writing, said the Indian Express report.
Laughably short tenures
Finally, when the judiciary does manage to make its mind up over who to appoint, the retirement rules mean that some of the tenures end up being extraordinarily short. A recent example of this is apparent in Manipur and Meghalaya.
The first woman Chief Justice of the Manipur High Court, Abhilasha Kumari, took oath on 9 February and will retire on 22 February, and Justice Tarun Agarwala, who took oath as the Chief Justice of Meghalaya High Court on 12 February, will end his term on 2 March, reported Hindustan Times. Both of them would have been in the top jobs for less than a month and their retirements will set off another round of judicial appointments which we have seen are not exactly straightforward.
The report further adds that seven other high courts — Telangana and Andhra Pradesh, Calcutta, Chhattisgarh, Delhi, Himachal Pradesh, Bombay and Jharkhand — are currently without chief justices.
With the enormous backlog of cases in the judicial system, these incidents only serve to cause further dismay in litigants. As Firspost wrote earlier, the concept of seniority and regional representation in how the Supreme Court is constituted may require a re-look. It may not make sense to have Supreme Court judges who have very short tenures before retirement. It may be good to have younger judges who will be able to spend a longer time at the Supreme Court. This will help the court to fulfil its role in settling substantial questions of law and will also help it to clear the backlog of cases, as the judges will be on the bench longer and therefore will be able to hear more cases.
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Updated Date: Feb 20, 2018 12:56:00 IST