The MoP is a written understanding between the judiciary and the executive on appointment of constitutional court judges. Sources in the department of justice told TOI, “As on March 26, out of 410 vacancies of judges, HC collegiums have not made recommendations for 214 posts, or in 52% of posts.”
On March 27, a bench of CJI S A Bobde and Justices S K Kaul and Surya Kant had asked attorney general K K Vengupal to explain on April 8 why the government was sitting over 45 names recommended by HC collegiums for appointment as HC judges for periods ranging from six to 14 months and not sending them to the SC collegium for scrutiny.
Justice Kaul had pointed out that the government was also sitting over 10 names, cleared by the SC collegium for appointment as HC judges, for periods ranging from seven to 19 months. He said the SC collegium’s recommendation for appointment of five advocates as judges of Calcutta HC was sent to the government on July 25, 2019, and these were yet to be cleared. Similarly, an advocate’s name cleared for appointment as J&K HC judge has been pending for 17 months and four names for Delhi HC cleared by the collegium have been pending for seven months with the Centre.
The law ministry recently sent the 45 names, recommended by various HC collegiums, to the SC collegium for scrutiny. The SC bench is scheduled to hear the case relating to delay in appointment of judges on April 8.
A law ministry source said, “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.”
Ministry sources said the situation was similar regarding filling up the posts of HC judges from among senior judicial officers. “There are three HCs where names against service quota vacancies have not been recommended by the HC collegiums for more than five years,” the source said.
The ministry also laid the blame at the door of the SC collegium and said it had not yet recommended appointment of a judge against the vacancy arising from the retirement of CJI Ranjan Gogoi on November 17, 2019. Since then, vacancies have risen to five and no recommendation has been made by the SC collegium, they said, while flagging the lack of recommendation for appointment of women SC judges. Justice Indira Banerjee is the lone woman judge in the SC.
Ministry sources cited the ‘Judges Case’ judgment by a constitution bench of the SC which had ruled that appointment of judges was not to be examined on the judicial side by constitutional courts. “Though 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,” it had said.
The ministry said a record 687 HC judges were in position in 2018, which came down to 677 in 2019 and 668 in 2020. During the UPA regime, the highest number of judges in place 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, it said.