The Supreme Court on Friday sharply criticized the Modi government for sitting on the recommendation of its collegium on the appointment and transfer of judges in High Courts, almost bringing judiciary to the state of collapse.
Asking if by sitting on the recommendations of the collegium, the government was trying to bring the judicial institutions to a “grinding halt”, Chief Justice T.S. Thakur told Attorney General Mukul Rohatgi that it would be forced to intervene judicially and call for every file sent to the government for clearance by the collegium.
“Don’t force us to ask where the files are. Don’t force us to judicially intervene. Don’t try to bring this institution to a grinding halt. That’s not the right thing to do,” Chief Justice Thakur told the Attorney General.
Pointing to a chart before him, Chief Justice Thakur said: “We have a chart here detailing the list of collegium recommendations for appointments and transfers. We can give it to you. There are 75 names of High Court judges recommended by the collegium. These include names for appointments and transfers of HC judges, including Chief Justices. There is nothing on them from your side so far.”
Seated with Justice A.M. Khanwilkar and Justice D.Y. Chandrachud, Chief Justice Thakur appeared unrelenting even as the Attorney General made repeated assurances that the concerns expressed by the court would be taken up at the highest level in the government.
Pointing out that there was some kind of “logjam” in the appointment of judges to higher judiciary, Chief Justice Thakur told the Attorney General: “If you have a problem with a name suggested by us, send the file back to us. We will look into it.”
One such instance where the recommendation of the top court collegium has not been acted upon so far by the government is of the transfer of the Chief Justice of Uttarakhand High Court Justice K.M. Joseph as the Chief Justice of the Andhra Pradesh High Court. Despite top court collegium recommending his transfer in early May, the government is yet to issue his transfer orders.
The top court bench headed by Chief Justice Thakur gave vent to its anguish over the dilly dally approach of the government in clearing the names for appointment of judges to the high courts on a PIL by a 1971 war veteran who has expressed concern over ever rising vacancies in high courts.
Things went cold between the top judiciary and the government after its constitution bench on October 16, 2015 struck down as unconstitutional the Constitution’s 99th Aamendment that put in place the NJAC and the NJACA Act, 2014.
Pointing out that with four million cases and High Courts functioning at 44.30% of the sanctioned strength of judges, Chief Justice Thakur asked Attorney General Rohatgi to immediately address the issue as “whole situation is getting very difficult.”
With high courts functioning with less than 50% of their sanctioned strength, consequently affecting the hearing of appeals, Chief Justice Thakur said people were languishing in jails waiting for the hearing of their appeals.
“Should we deal with the issue judicially? Should we fix accountability?” he asked, pointing out that the process for the framing of memorandum of procedure can go on, but the appointment of judges can’t wait.
The Attorney General urged the court not to issue notice on the PIL by Lt. Col. Anil Kabotra, assuring that he would soon revert to the bench.
The tussle between the top judiciary and the Modi government came out in open on April 24 during the conference of Chief Justice of the High Courts and the Chief Ministers when Chief Justice Thakur made an impassioned appeal to Prime Minister Narendra Modi to clear the names recommended by the top court’s collegium for the appointment of judges.
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