 "Govt can't bring judiciary to a grinding halt: Supreme Court")
In a scathing attack, the Supreme Court on Friday said the government cannot bring the judiciary to a "grinding halt" by not appointing high court judges despite the recommendations of its collegium long ago and said it could as well close the courts and lock "justice out".
"You cannot bring the entire institution (of judiciary) to a grinding halt. If there is a problem with the name of a person, please send it back and ask us to reconsider," a Bench headed by Chief Justice T S Thakur told Attorney General Mukul Rohatgi, representing the Centre, in a packed courtroom.
Expressing deep anguish over the delay in appointment of judges in high courts, the Bench also comprising Justice D Y Chandrachud and L Nageswara Rao gave the example of the Karnataka High Court where one of the floors, having court rooms, is locked due to lack of judges.
The Bench was irked when Rohatgi, at the outset, raised the issue of non-finalisation of the Memorandum of Procedure (MoP) as one of the reasons hindering the appointment process and said it was necessary in pursuance of the recent apex court judgement, which quashed the NJAC Act. The Bench said it was agreed by the law ministry that non-finalisation of MoP would not be a ground for stalling appointment which can be made on the basis of the old MoP.
"There should not be any deadlock. You have committed to process the files for appointment of judges without finalisation of the MoP. Finalisation of MoP has nothing to do with the appointment process in the judiciary. You said that the appointment can be made under the old MoP," the Bench said, adding that so far, only 18 out of 77 names recommended by the Collegium for HC Judges, have been cleared.
"Nothing is happening. For nine months, the names the Collegium gave you, have been languishing with you... you have been sitting over the names. What are you waiting for? Some change in the system? Some revolution in the system," the Bench observed, adding that the Centre cannot "hold up" the appointments.
The bench went further and observed that the Executive's inaction was "decimating the institution".
It referred to the example of the Allahabad High Court and said the Collegium had recommended 18 names for appointment as judges and the government chose eight and now wanted to appoint only two.
"You see, we cleared the files way back on February 4 this year. Tell us what is the progress," the bench said, adding it can ask Secretaries of the Law Ministry and the PMO to appear before it.
"You (AG) call them, I want to hear them," the CJI, who did not dictate it in the order, observed during the hearing.
The Attorney General submitted that the NJAC judgement mandated that there should be a fresh MoP and tried to refer to the verdict.
"If everything can be done without MoP, why do you need the MoP in the first place," Rohatgi said.
"Who said there is no MoP now...appointments are being made now as per the old system... Our tolerant approach seems to be not working. If you go on like this, we will re-convene a five-judge bench and say that the government will not be allowed to scuttle judicial appointments till it frames a new MoP... Do you want that," the bench said.
"We don't want to clash with you. But if you go on like this, we will form a five-judge Bench and say you are scuttling appointments," it said.
"You cannot bring the entire institution (of judiciary) to a grinding halt. If there is a problem with the name of a person, please send it back and ask us to reconsider," a Bench headed by Chief Justice T S Thakur told Attorney General Mukul Rohatgi, representing the Centre, in a packed courtroom.
Expressing deep anguish over the delay in appointment of judges in high courts, the Bench also comprising Justice D Y Chandrachud and L Nageswara Rao gave the example of the Karnataka High Court where one of the floors, having court rooms, is locked due to lack of judges.
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"You may now as well close court rooms down and lock justice out," the Bench, which initially threatened to summon the secretaries of the PMO and the Law Ministry to appear before it with the files, said.
The Bench was irked when Rohatgi, at the outset, raised the issue of non-finalisation of the Memorandum of Procedure (MoP) as one of the reasons hindering the appointment process and said it was necessary in pursuance of the recent apex court judgement, which quashed the NJAC Act. The Bench said it was agreed by the law ministry that non-finalisation of MoP would not be a ground for stalling appointment which can be made on the basis of the old MoP.
"There should not be any deadlock. You have committed to process the files for appointment of judges without finalisation of the MoP. Finalisation of MoP has nothing to do with the appointment process in the judiciary. You said that the appointment can be made under the old MoP," the Bench said, adding that so far, only 18 out of 77 names recommended by the Collegium for HC Judges, have been cleared.
"Nothing is happening. For nine months, the names the Collegium gave you, have been languishing with you... you have been sitting over the names. What are you waiting for? Some change in the system? Some revolution in the system," the Bench observed, adding that the Centre cannot "hold up" the appointments.
The bench went further and observed that the Executive's inaction was "decimating the institution".
It referred to the example of the Allahabad High Court and said the Collegium had recommended 18 names for appointment as judges and the government chose eight and now wanted to appoint only two.
"You see, we cleared the files way back on February 4 this year. Tell us what is the progress," the bench said, adding it can ask Secretaries of the Law Ministry and the PMO to appear before it.
"You (AG) call them, I want to hear them," the CJI, who did not dictate it in the order, observed during the hearing.
The Attorney General submitted that the NJAC judgement mandated that there should be a fresh MoP and tried to refer to the verdict.
"If everything can be done without MoP, why do you need the MoP in the first place," Rohatgi said.
"Who said there is no MoP now...appointments are being made now as per the old system... Our tolerant approach seems to be not working. If you go on like this, we will re-convene a five-judge bench and say that the government will not be allowed to scuttle judicial appointments till it frames a new MoP... Do you want that," the bench said.
"We don't want to clash with you. But if you go on like this, we will form a five-judge Bench and say you are scuttling appointments," it said.