The Centre government on Tuesday accused the Supreme Court and High Courts of blatantly breaching the memorandum of procedure (MoP) which mandates to initiate the process of appointment of judges six months before a post falls vacant.
Memorandum of procedure (MoP) is a written understanding between the judiciary and the executive on the appointment of constitutional court judges.
“As on March 26, out of 410 vacancies of judges, HC collegiums have not made recommendations for 214 posts, or in 52% of posts,” told a source from the legal department.
On March 27, the top court bench comprising CJI S A Bobde, Justice S K Kaul, and Justice Surya Kant adjourned the matter related to delay in the appointment of judges to April 8 and had asked Attorney General K K Venugopal to submit an explanation on why the government was sitting over 45 recommendations proposed by HC collegiums for their appointment as High Court judges for a long period of six to 14 months and also not sending them for further scrutiny to SC collegium.
Justice Kaul also mentioned another incident stating that the government was sitting on the names of 10 recommendations which SC collegium has cleared, even after the period of seven to 19 months.
He further pointed out that the SC collegium had sent recommendations of five advocates for their appointment as judges in Calcutta High Court on July 25, 2019, and the government has not cleared them yet.
Likewise, an advocate’s name was recommended for the appointment of Jammu & Kashmir High Court judge which is pending for 17 months and another four names for Delhi High Court are pending for the seven months with the Centre government.
“The oldest vacancy, to be filled from among advocates’ quota, dates back to October 14, 2014, in Orissa HC where the HC collegium is yet to make a recommendation even after more than six years. There are at least nine other HCs, where against the oldest vacancy from bar quota, no recommendation has been made for more than five years,” said a source from the Law Ministry.
“There are three HCs where names against service quota vacancies have not been recommended by the HC collegiums for more than five years,” added the source.
The Law Ministry hit back at the Supreme Court stating that it had not recommended the appointment of a judge against the vacancy arising following the retirement of former CJI Ranjan Gogoi on November 17, 2019. It was further submitted that vacancies have risen to five and SC collegium has not made any recommendation yet.
Citing to the Judges Case Judgment of constitution bench of Supreme Court, the Law Ministry said, Though the appointment of constitutional court judges are not open to scrutiny on the judicial side, of late, attempts have been made by judges outside the collegium to drag judicial appointments for scrutiny in the course of hearing unrelated matters. There is a tendency to put the blame on the government for delay in judicial appointments.”
The Ministry also referred to the statistics saying that a record 687 judges were in position in 2018, which drop down to 677 in 2019, and 668 in 2020. “During the UPA regime, the highest number of judges in HCs was 639 in 2013. It said a record 126 HC judges were appointed in 2016. The average number of HC judges appointed during UPA-1 was 75 per year, in UPA-2, it was 74 per year. Under NDA, 103 HC judges per year have been appointed,” said the Ministry.